C. Kesavan vs S. Sivagurunathan

R.S. Ramanathan, J.—The Defendant, who was successful in the Trial Court and unsuccessful in the first appellate court, is the Appellant.

The Respondent/Plaintiff filed the suit for injunction restraining the Appellant in demolishing the remaining portion of the suit wall and for mandatory injunction directing the Appellant to reconstruct the demolished portion of the suit wall.

The case of the Respondent as seen from the plaint was that he is the owner of the house in T.S. No. 62/877 andit is his ancestral property and he is residing there. On the eastern side of his house, the Appellant''s house is situate and a wall separates both the houses and the wall runs north south having a thickness of 2 feet and there afters and beams of the Respondent''s house rest on the suit wall and if any damage is done to the suit wall, the Plaintiff''s house would collapse. The Appellant started demolishing a portion of the suit wall up to a distance and by reason of the demolition of a portion of the suit wall, there is every likelihood of the Respondent''s house to collapse and therefore, filed the suit for injunction not to demolish the remaining portion of the wall and for mandatory injunction to reconstruct the demolished portion of the wall.

The Appellant contested the suit stating that the suit wall is situate in his property and the suit wall is his exclusive wall and the Respondent/Plaintiff has no right over the same and as a owner of the wall, he is entitled to demolish his wall and by reason of the demolition of the wall, the Plaintiff''s house would not be damaged and without praying for a relief of declaration about the Plaintiff''s right over the wall, the suit filed by the Plaintiff is not maintainable. He also filed Additional written statement that the Plaintiff has not filed the suit claiming the right and title or easementary right and even as per the Commissioner''s report, the suit wall is situate in S. No. 876 which belongs to the Appellant and therefore, the Plaintiff is not entitled to the relief prayed for.

The Trial Court accepted the contention of the Appellant and held that the suit wall is situate in S. No. 876 which belongs to the Appellant and the Respondent/Plaintiff has no right over the same and as the wall belongs to the Appellant, he is entitled to demolish and reconstruct the same and that cannot be questioned.

Aggrieved by the same, the Respondent/Plaintiff filed appeal in A.S. No. 126 of 1992.

The lower appellate court found that the beams and rafters of the Plaintiff''s house rest on the suit wall and by reason of the demolition of a portion of the suit wall, the Plaintiff''s house is exposed and that is also evidenced by the report of the Commissioner'' and being a party wall, it is used as a support by both the parties and the Plaintiff is entitled to claim easementary right over the same and therefore, set aside the judgment and decree of the Trial Court and allowed the appeal. Aggrieved by the same, this second appeal is filed.

At the time of admission, the following substantial question of law was framed:

Whether the lower appellate court is legally right in granting the right of easement without a pleading and proof.

Mr. Mani Narayanan, learned Counsel for the Appellant submitted that the lower appellate court erred in granting easementary right in favour of the Respondent/Plaintiff in the absence of any pleading and proof to that effect. The learned Counsel further submitted that the Respondent/Plaintiff did not claim any easementary right over the suit wall and as per the report of the Commissioner the suit wall is situate in S. No. 876which admittedly belongs to the Appellant and when the suit wall belongs absolutely to the Appellant, he is entitled to demolish his exclusive wall and that cannot be questioned by the Respondent and without appreciating the same, the lower appellate court allowed the appeal and decreed the suit granting easementary right to the Respondent/Plaintiff which was not pleaded.

On the other hand, Mr. Prabhu for Mr.V.K. Vijayaragavan, learned Counsel appearing for the Respondent submitted that admittedly, the suit wall is situate in between the houses of the Plaintiff and the Defendant and therefore, it must be construed as a party wall and it belongs to both the persons who are having house on either side and it is settled law that a party wall cannot be demolished without the consent of the other co-owner and the action of the Appellant in demolishing aportion of the party wall was also evidenced by the report of the Commissioner and by reason of the damage, the Plaintiff''s house is exposed and therefore, considering these aspects, the lower appellate court has rightly allowed the appeal and decreed the suit. He also relied upon the judgments in Shivputrappa Parappa Kamshetti Vs. Shivrudrappa Kalappa Huli, ; Ganpat Rai v. Sain Das (AIR 1931 Lah 373) and Durga Parshad Vs. Jheetar Mal, .

It is admitted by both the parties that the suit wall divides the houses of the Appellant and theRespondent. It is further admitted that the Plaintiff''s house is on the western side and the Appellant''s house is on the eastern side of the wall. It is seen from the report of the Commissioner that the suit wall is situate in S. No. 876 which belongs to the Appellant. But, it is also seen from the report of the Commissioner that as per the plan of the Surveyor, the suit wall is situated in S. No. 876to a length of 40 feet and from that point towards north to a length of 44 feet it is situate in S. No. 877 to an extent of half foot. Nevertheless, the Advocate Commissioner rejected the report of the Surveyor stating that it is not possible for the wall to have been constructed on the Plaintiff''s property for a distance and submitted a report stating that the entire suit wall is situate exclusively in S. No. 876 which belongs to the Appellant/Defendant. The judgments referred to by the learned Counsel for theRespondent apply only to a party wall which is owned by both the owners. In this case, it is seen that the wall is the exclusive wall of the Appellant as per the Commissioner''s report. Therefore, we will have to see the law on this aspect.

Katiyar, the celebrated author, in his book on Easements X Edn. deals with the the easements relating to party walls at page 139 as follows:

Easements relating to party-walls. In its popular sense, a "party-wall" usually means the dividing wall between two tenements or buildings. In Watson V. Gray, four senses have been given in which the term may be used, namely, --

(1) a wall of which the two adjoining owners are tenants-in-common;

(2) a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners;

(3) a wall which belongs entirely to one of the adjoining owners but is subject to an easement or right to the other to have it maintained as a dividing wall between the two tenements;

(4) a wall divided longitudinally into two moieties, each moiety being subject to across-easement in favour of the owner of 8 the other moiety.

Therefore, from the above proposition of law, even assuming that the wall is situate on another''s property, the other person has got a right of easement over the suit wall. In this case, it is admitted by the Surveyor that the suit wall is also found half foot in the Respondent''s property for a distance of 44 feet. Therefore, it can be presumed that the Respondent/Plaintiff is also a co-owner of the suit wall. Even assuming that theRespondent/Plaintiff is not the co-owner and the Appellants the exclusive owner of the suit wall, having regard to the fact that the suit wall is a dividing wall of both the houses, each party is entitled to maintain the suit wall and the adjoining owner can claim easementary right over it and the owner of the wall cannot do anything which have the effect of curtailing or destroying the other person''s beneficial use. Further, in the judgment in Kanyalal and Others Vs. Loonkaran and Another, it has been held as follow:

Such an easement is one, which apart fromstatutory provision, would usually comeinto existence either by express agreement,or by necessary implication therefrom upon a severance of the two tenements, or buildings, by the common owner, just as on the grant of one or two buildings by the owner of both, the law will presume in favour of the grantee all such easements of support and other easements as are reasonably necessary for the purposes of the grant.

Further in the judgment in KARUPPIAH PILLAI v.NARAYANA MUDALIAR (1967) 1 MLJ 91) our High Court has held as follows:

In such case it is permissible for the owner to pull the wall altogether temporarily for the purpose of renovating it with the idea of opening windows or doorways in it where no right of privacy has been established in the owner of the other tenement. The latter cannot therefore claim to restrain the operations by injunction.

Therefore, from the above passages from Katiyar''s and from the judgments referred to above, even though the Respondent/Plaintiff cannot claim any ownership over the wall, he is entitled to claim easementary right.

The main contention of the Appellant is that the Plaintiff has not pleaded easementary right over the suit wall and therefore, the lower appellate court erred in granting the relief of easementary.

No doubt, the Respondent/Plaintiff has not stated in the plaint that he is entitled to easementary right over the wall. But, a reading of the plaint as a whole would make it clear that he is claiming only easementary right over the wall though the word easementary right is not specifically used. It has been stated in the plaint that the suit house is 160 years old and on the eastern side of the Plaintiff''s house, the Defendant''s house is situate. The width of the wall is two feet and it separates the houses of the Plaintiff and the Defendant. The rafters and beams of the Plaintiff''s house rest on the suit wall from the time of construction and if any damage is done to the suit wall, the Plaintiff''s house property will be collapsed. Therefore, from the pleading, it can be safely inferred that the Plaintiff claimed right of support for his house on the suit wall and that is known as easementary right insofar as party wall is concerned as per the judgments referred to above.

Further, the Appellant filed written statement stating that the claim of the Respondent/Plaintiff amounts to claiming easementary right, but, that is not the case of the Plaintiff. Therefore, though the word easementary is not stated in the plaint, both the parties understood the nature of the right claimed by the Plaintiff/Respondent and went to trial on that basis. As stated supra, the suit wall divides both the houses and the Plaintiff''s rafters and beams are resting on the suit wall. Therefore, even assuming that the suit wall is situated on the Appellant''s property, the Plaintiff has got right of support for his house over the suit wall and that has been pleaded in the plaint and that right is known as easementary right. As a matter of fact, the judgment reported in Kanyalal and Others Vs. Loonkaran and Another, referred to above, this aspect has been dealt with.

Therefore, I am of the opinion that necessary pleadings have been made in the plaint to sustain easementary right and the parties have also contested the suit knowing fully well that the Plaintiff is claiming right of support for his house on the suit wall which is 12known as easementary right over the party wall and therefore, it cannot be stated that there is no pleading. Considering all these aspects, the lower appellate court has rightly allowed the appeal. Therefore, the substantial question of law is answered against the Appellant.

In the result, the second appeal is dismissed. No costs. The connected miscellaneous petition is also dismissed.