IMAMBHAI KAMRUDIN Vs. RAHIMBHAI USMANBHAI

JUDGEMENT

(1.) The plaintiffs sued for an injunction against the defendants directing them to close up the windows which they had opened in the plaint joint wall, and for permission to the plaintiffs to do so at the defendants costs if they failed to close up the windows, and to restrain the defendants from making any new openings etc., in the said common wall.

(2.) The defendants contended that the wall in which the windows in the suit were opened had not been of joint ownership; that the plaintiffs were not prejudiced in any way; and lastly that the plaintiffs filed the suit about twelve years after the windows had been opened.

(3.) The first issue in the trial Court was whether the wall between the two houses had been proved to be of joint ownership. The Judge found on the facts that the wall up to the roof of the plaintiffs house was old, and was of joint ownership, but that the plaintiffs had to admit that some years ago the wall had been raised by the defendants ancestors at their own expense. The owner of plaintiffs house not only acquiesced in the raising of that wall but had a knowledge of his doing so and did not protest. The suit having been filed after his death and that of Usmanbhai, nobody was in a position to say what arrangement there was between them, when Usmanbhai raised the wall above the roof at his own expense. The learned Judge continued:- The old wall is a common wall. Thus assuming that the new wall is also a party wall, it could not be said that there is an ouster by the opening of the windows. Ac the same time, Watson V/s. Gray (1880) 14 Ch. D. 192, quoted with approval in Kanalcayya V/s. Narasimhulu (1895) I. L. R. 19 Mad. 38, would show that the raised portion could not be called a party wall of joint ownership. The ruling in Mutilal V/s. Muganlal (1888) P. J. 297 is based on a specific agreement on defendants part not to pay his share of expenditure which was not proved. There is nothing to show that there was consent of Ismailji or that this raising of the wall was necessary for the benefit of his house. From any point of view I find that plaintiffs should not be allowed any injunction.