ROOPCHAND Vs. PUNAMCHAND

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for injunction.

(2.) THE dispute between the parties who are brothers relates to a joint wall situate between their respective houses. The house of the plaintiff stands to the east to that of the defendant. The case of the plaintiff was that this wall was his exclusive property, and that while he was at Bombay, the defendant had dismantled his house and started re-building it, and in doing so he had put in a chimney for the remission of smoke in his kitchen and set up some new 'alas' and almirahs (the number whereof, incidentally, was not mentioned in the plaint) and further that he was raising the height of this wall so as to build a third storey on it. The case of the plaintiff further was that as soon as he was informed of what the defendant was doing, he hastened to his village from Bombay and raised a strong protest with the defendant but without any avail. A passing reference may as well be made to one more fact, and that is that, according to the plaintiff, the defendant was building a balcony in front of his house and he had built it so as to project beyond the half of the width of the party-wall. It may at once be stated that the trial court has ordered the removal of the chimney and also the removal of the balcony if and in so far as it projects beyond the half of the width of the party-wall and there is no dispute in this appeal about these. To resume the narrative of facts, the plaintiff later on amended his plaint and claimed in the alternative that even if the wall in question was established to be joint between the parties, he is entitled to claim an injunction directing the defendant to demolish the party-wall in so far as he had heightened it beyond the second storey and further that an injunction should also issue" against him directing him to close down the Alas and the almirahs which he had built in the wall in question and to restore it to the condition in which it stood before. The plaintiff also claimed a perpetual injunction restraining the defendant from raising the height of this party-wall without his consent in future.

(3.) THE defendant resisted the suit. His case was that the wall in question was not the exclucive property of the plaintiff but was the joint wail of the parties, and that the former was within his rights in having dealt with the wall as he did. It was also contended that the defendant had a customary right to use the party-wall to build a third storey of his house.