PRITAM SINGH Vs. MOHAN LAL AND ANOTHER

JUDGEMENT

(1.) The plaintiff, Mohan Lal, filed a suit for permanent injunction restraining the defendants, Pritam Singh and his wife Mohinder Kaur, from interfering in the construction of the wall shown red in the plan attached to the plaint on the allegation that the wall was a joint wall of the parties and the plaintiff had the right to build thereon. The defendants resisted the suit and pleaded that the wall was not a joint wall of the parties but was exclusively owned by the defendants.

(2.) On the pleadings of the parties, the following issues were framed by the learned trial Court :-

(3.) The finding of fact arrived at by both the learned lower Court that the wall in dispute is a joint wall of the parties is not being disputed by the learned counsel for the appellant. His submission is that in the case of a party wall the owners are tenants-in-common and none of them has the right to build upon that wall or raise its height without the consent of the other tenant-in-common or tenant-in-common. He has relied upon the decision of the Division Bench of the Lahore High Court (Shadi Lal, C.J., and Walker, J.) in Ganpat Rai and others v. Sain Dass and others, 1931 AIR(Lah) 373. The learned Chief Justice wrote the judgment with which Walker, J. concurred. The facts were that the plaintiffs and the defendants were owners of two adjoining houses separate by a wall which belonged to both the parties as tenants-in-common. The defendants raised the height of the wall, with a view to build a super-structure on their tenement without the permission of the plaintiff. The question for decision before the Division Bench was whether the action of the defendants constituted a violation of the plaintiffs' right and whether the plaintiffs could ask for a mandatory injunction. The learned Chief Justice, dealing with this question, observed as under :-