Bishan Dass and Another vs Roshan Lal Mehta and Another

S.S. Sodhi, J.—The wall between the houses of the plaintiff and the defendants is the bone of contention between them. The plaintiff Roshan Lal Mehta sought a permanent injunction to restrain the defendants from making any construction in their house by placing rafters on the said wall. The defendants, on the other hand, took the plea that it was a common wall of the parties and they were, therefore, well within their right to make the construction and to use the common wall for this purpose.

It was the finding of the trial Court that the wall in question was the common wall of the parties and it was specifically found in this behalf that the roof of the house of the defendants was supported by this wall and the stair case also rested upon it. The suit of the plaintiff was consequently dismissed.

On appeal, however, the lower appellate Court decreed the suit of the plaintiff holding that the wall was the exclusive property of the plaintiff. It was further observed that even if the existing wall was held to be joint, it did not necessarily follow that any further construction upon it would also be joint.

The findings and the judgment and decree of the lower appellate Court cannot indeed be sustained. The finding regarding the wall not being the joint property of the parties or exclusively that of the plaintiff is not doubt, a question of fact, but a reading of the judgment of the lower appellate Court would show that in arriving at this finding in favour of the plaintiff neither the documentary nor the oral evidence brought on record was discussed. At the very out-set, reference deserves to be made to the registered sale-deed exhibit P-1 of June 12,1912, whereby the grand-father of the plaintiff purchased the house now in the possession of the plaintiff. There is clear recital in this sale-deed to show that the roof of the house of the defendants rests upon this wall as also the staircase. These are indeed telling circumstances pointing inevitably, to the wall being a joint wall of the parties.

Equally erroneous is the view expressed by the lower appellate Court that even if the wall is treated to be the joint of the parties, any further construction upon it would not necessarily be joint. A clear answer to this is provided by the judgment of the Division Bench of our Court in Sardari Lal Gupta Vs. Siri Krishan Aggarwal, , where it was held that raising of a party wall for use as support for a proposed building, without the consent of the other party, is permissible, if it does not lead to any damage to the other party. It is pertinent to note here that no plea has been raised by the plaintiff to any damage or harm accruing to him by the proposed construction of this wall, by the defendants.

Such thus being the circumstances, here, the findings and the judgment of the lower appellate Court are hereby set aside and the suit of the plaintiff is accordingly dismissed. In the circumstances, however, there will be no order as to costs.