Barkat Ram vs Labha Ram

K. Kannan, J.—The following substantial questions of law arise for consideration in this second appeal:-

i) Whether a party wall can be put to an additional burden without the concurrence of the parties who have rights on such a party wall?

ii) Whether the plaintiff''s action for injunction could have been dismissed even after finding that it was a common wall when admittedly, the parties had restricted the licence to the other only to the extent of laying roof or beam on the same and not for any further burden on the wall at the instance of one party and to the exclusion of another?

The plaintiff is the appellant before this Court. A suit for injunction was sought by the plaintiff contending that in terms of a compromise between parties effected on 24.02.1966, the plaintiff and the defendant had agreed that a wall which started from the house of Kuldeep Singh Sahi and was common to the house of the plaintiff-Barkat Ram and Lal Chand who is the father of the defendant had been constructed by common expenditure of both the parties and if anyone party wanted to construct a roof on the said wall or wanted to allow a beam on the said wall, then the other party shall not stop the person from laying the roof or the beam. The exact terms of the compromise which was admitted before the court below are reproduced hereunder:-

Today on 24.02.1966 both the parties have come to a settlement that the wall which starts from the house of S. Kuldeep Singh Sahi and is common to the house of the parties i.e. Barkat Ram son of Karam Chand and second party Lal Chand son of Rura Mal has been constructed by common expenditure of both the parties and the property is common for both the parties. If out of both the parties any party likes to construct a roof etc. on the said wall, then the second party shall not stop the other party from laying the said roof and the other party can''t be stopped from laying beam etc. on the said wall, because the said wall is common.

The defendant''s contention was that he was raising a wall further to construct a chabutra and that he should have the entitlement to do so, since it was admittedly a common wall. The trial Court dismissed the suit finding that the plaintiff cannot prevent a wall that belonged in common to the defendant and the said finding was also affirmed in appeal.

The courts below having found that the property was a common wall which in technical expression is a party wall and it is subject to certain legal incidence which have been applied in India in various situations. Importing the principles in Indian context, there have been several decisions that have examined the legal incidence and have also reiterated the common law principles. In Walson Versus Gray-XIV (1880) Ch. D. 192, Fry. J. explained: What is the meaning of the term "party-wall," as there used? The words appear to me to express a meaning rather popular than legal, and they may, I think, be used in four different senses. They mean, first, a wall of which the two adjoining owners are tenants in common, as in Wiltshire v. Sidford and Cubitt v. Porter. I think that the judgments in those cases show that is the most common and the primary meaning of the term. In the next place the term may be used to signify a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners, as in Matts v. Hawkins-5 Taunt. 20. Then, thirdly, the term may mean a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements. The term is so used in some of the Building Acts. Lastly, the term may designate a wall divided longitudinally into two moieties, each moiety being subject to a cross easement in favour of the owner of the other moiety." In AIR 1931 373 (Lahore) a Division Bench of the Lahore High Court held that if one co-owner of a party wall placed obstruction on it, the other co-owner was entitled to remove the obstruction. However, the decision in Ganpat Rai (supra) was held in a subsequent judgment before another Division Bench in Sardari Lal Gupta Vs. Siri Krishan Aggarwal, as per incuriam. The Division Bench explained,

It is well settled that in the case of immovable property owned jointly by tenant-in-common, each tenant is interested in every infinitesimal portion of the property and has the right irrespective of his share to be in possession of every part of property jointly with the other tenants; but that does not mean that a tenant has got a right of action against the others if the latter puts the property to a proper use as that does not constitute invasion of the right of a co-sharer (see Mahesh Ngrain Versus Nowbat Pathak- (1905) ILR 32 Cal 837).

If the matter is examined from this point of view, it is clear that every owner has same rights in a party-wall and he is entitled to its user in a reasonable way. He can even raise its height provided he admits the newly erected portion of the wall, a joint property of all the co-owners. He can also support his building on the common wall if that does not cause damage to the other co-owners. However, if a co-owner wants to raise the construction on the common wall with the purpose of ousting the other co-owners the ousted co-owners are entitled to raise objection regarding the construction.

We have a codified law in India through the Indian Easement Act. Even the Easement Act recognizes certain rights in relation to properties which are held in common. In this case, the character of the common wall as agreed to by the parties answer the 4th description as given by the legal exposition extracted above.

From the time when the suit was instituted till date, there appears to be no interim order of injunction in favour of the plaintiff. This decree ought not to therefore give a new right to the plaintiff to seek for demolition of any construction that could have come up. The plaintiff''s suit itself was in the nature of a quia timet action and if the apprehended injury for restraint through injunction could not effectively secure to the plaintiff the relief at that time, I only believe in the normal course of events, the construction could have still proceeded. In order that the relief that is granted does not turn out to be ultimately merely illusory, I have reiterated the principle that would at least allow for the plaintiff to keep his common rafters or beam in the party wall at a still further higher level, but his own action shall must be understood as only allowing the party wall raised by the defendant to be continued to be retained in common ownership, no matter that the defendant alone may have put up the further constructions.

The answer to the legal posers shall be: The party wall shall be retained in its character as such, no matter that only one of the parties has put up further construction on the party wall. Such construction shall be such as not to obstruct the other from all normal users of the party wall. The relief of injunction sought for, was justifiably dismissed but it should be understood, that in a given case of prejudice of additional burden that derogated from common rights, the Court shall be justified in ensuring that no prejudice is caused to the plaintiff''s right of common user. The plaintiff''s right to common wall on the further construction right is hereby assured. The second appeal is disposed off with no modification of the decree except the clarification referred to above. No costs.