BAIJ NATH Vs. JANKI PRASAD

JUDGEMENT

(1.) This is a defendant's appeal. The plaintiff brought an action against the defendant claiming an injunction to restrain the defendant from opening an almirah in the wall between the two houses, and asking that another almirah already made should be closed, and further that certain beams which the defendant was placing or proposed to place on his side of the wall should not be allowed, and an injunction restraining him from so doing be decreed.

(2.) It appears that the plaintiff has a house three storey high; the defendant has a house one storey high-both parties using the same wall in common. It has been decided by the lower appellate Court as a matter of fact that the wall between the two houses is held in common by both the parties. The defendant wished to add one storey more to his present house. That would make his house two storeys in height, with the plaintiff's house still a storey higher above the defendant's house. The lower appellate Court refused to grant an injunction. The appellant contends that an injunction ought to issue, and quotes as his authority the case of Ekramullah Khan V/s. Muhammad Yunis Ali Khan [1915] 13 A.L.J. 473. 3. This case decided that one of two tenants in common is not entitled to build upon a party wall without the consent of the other tenant in common; and in particular he relied upon a portion of the judgment in the case as follows: The case of Watson V/s. Gray [1880] 14 Ch. D. 122 clearly lays down a principle that in such a case as this one of the tenants in common is not entitled to interfere With the party wall without the consent of the other tenant-in-common.

(3.) It is clear, in my view, that this decision is distinguishable from the present case. In the above case one of the co-owners proposed to increase the height of the party wall. The defendant in this case does not propose to do anything of the sort. Different considerations arise where there is an increase in the height of the party wall, as Crompton, J., said in Stedman V/s. Smith [1857] 8 E. & B. 1: You certainly had no longer the use of the same wall; you could not put flower-pots on it, for instance; or suppose he had covered it with broken glass, so as to prevent your passing along it, as you were entitled to do. The plaintiff is excluded from the top of the wall; he might have wished to train fruit trees there, or to amuse himself by running along the top of the wall.