Bhuralal and others vs Hiralal

Nigam, J.C.

Civil Suit No. 131 of 1949 was filed by Hiralal against Kana and two others for injunction restraining the defendants from interfering with the common wall between the parties'' house and from demolishing the five eaves belonging to the plaintiffs. The learned Sub-Judge decreed the suit with costs. The defendants filed an appeal and the learned Additional District Judge dismissed the appeal. Now the defendants have come up in second appeal. I have heard the learned counsel for the parties.

There is no dispute as to the fact that the wall between the houses of the parties belongs to them both. The defendants want to insert certain roof slabs and ''tands'' in the common wall, which is about 15 inches wide. The learned counsel for the appellants urges that his clients are making only what may be called a reasonable use of the wall and are not obstructing similar use by the plaintiffs. The learned counsel for the respondent refers to a judgment of this Court in -- ''S.A. No. 26 of 1927 D/- 2-9-1927 (Ajmer) (A). Then it was admitted that the rule as to the party walls was that neither party had a right to interfere with them without the consent of the other. It was on admission of this rule that the appeal was dismissed. In -- '' 1936 AMLJ 134 (B)'', which was a case of further constructions on the joint wall without the consent of the other owner, it was held that the ordinary rule of the law was that joint owners of a party wall may not make constructions without the consent of the other party.

The learned counsel for the appellant has argued that -- '' 1936 AMLJ 134 (B)'' was a case of construction on the wall and not of construction in the wall. I may confess that I am unable to see the distinction. The principle as laid down in -- ''S. A. No. 26 of 1927 (Ajmer) (A)'' and -- '' 1936 AMLJ 134 (B)'', cited above is, as I understand it that in case of joint owners of a common wall, neither party can interfere with the wall in any manner without the consent of the other party.

The next contention of the learned counsel is that the view held by this Court should be Changed. It is stressed that the law as laid down by the other High Courts is different and reasonable use of the wall should be permitted by both the parties. I am unable to agree that the law as laid down by this Court is unreasonable. In case of joint ownership, the normal rule is that neither party is permitted to make any constructions, i.e., to convert any part of the joint property to his individual use without the consent of the other. I do not see why the law as laid down by this Court should be changed as it is in accordance with the law as regards joint property and does not appear to be unreasonable. I am, therefore, unable to accept this contention.

No other point is raised. The result is that the appeal fails and is dismissed with costs.