C.S. Ramachandra Rao vs P. Chinnaswamy Kandar and another

Natesan, J.—The plaintiff, in a suit for injunction with reference to a party-wall, is the appellant in this Second Appeal. The only live issue for

consideration in this Second Appeal is the plaintiff''s claim to rest rafters of the building, which he proposes to put up, on the said common wall and

the defendants art the owners of the northern property. Originally, both the properties belonged to a common owner and in an earlier litigation

between the parties, it was held that the wall is a common wall. In fact, it is an admission in the earlier proceedings by the present first defendant

that the plaintiff could exercise his mamool rights in the wall. Of course, what those mamool rights were, were not defined. In the earlier litigation,

the finding, which has become conclusive between the parties, is, that the wall was held in co-ownership. The matter came up to this Court in S. A.

No. 2415 of 1948. The complaint then was the putting up of two windows in the wall by the present defendants. Then this Court observed that, on

the finding of the Courts below which had become final, both the plaintiff and the defendants held the wall in co-ownership, and one co-owner,

following the observations in Kanakayya v. Narasimhulu (1896) ILR 19 Mad. 38. The plaintiff in this case has not yet got ready plans of his

proposed building. There is no clear evidence as to the nature or character of the structure he is going to put up and the extent of the support for

the new building he required from the common wall. In fact, there is evidence that the plaintiff was constructing a wall close to the common wall

AB. The trial Court observed that the plaintiff was not entitled to place any rafter on the common wall affecting the right of the defendants. The

contention before the Court was that the plaintiff should not be allowed to rest his rafter on the common wall so as to jeopardise the defendants

using the common wall. The lower appellate Court has observed that as the plaintiff is raising a wall by the side of the common wall he can rest the

rafters or beams or anything he wants on this wall of this. It is expressed by the lower appellate Court that it was very doubtful whether the

common wall would stand the weight of the new building, which the plaintiff proposes to erect on his vacant site.

Mr. V.C. Veeraraghavan, learned Counsel appearing for the plaintiff-appellant, submits that the wall had been held in co-ownership, that is, in

joint proprietorship and that so long as there was no detriment or damage to the wall, or to the defendants'' enjoyment of the wall, as they are

entitled to, he could rest his rafters on the common wall. It is further submitted that the Courts below erred in denying all relief and in a way

preventing the exercise by the plaintiff of such right as he had in the common wall. It is pointed out that the rejection of the claim for injunction may

be construed as a denial of the plaintiff''s rights in the common wall.

In my view, the plaintiff himself is responsible for having brought on himself the position. He has not adduced in the trial Court evidence

particularising the construction he was proposing to put up and the extent to which he proposed to submit the common wall to the burden of his

new building. Whether the wall, as it stands now, can stand the strain of the rafters which the plaintiff wants to insert, is a matter for consideration

and decision. It is stated for the defendants, and this is an aspect which has weigned with the lower appellate Court, that the common wall itself is

an old wall and it is supporting the terrace of the defendants'' building. If the plaintiff desires to make holes in the common wall to insert his rafters,

it must be ascertained whether this will endanger the defendants'' building and perceptibly weaken the support to his terrace. It is well-settled, that

in the case of a party-wall, which is joint property of two neighbours, if one of them in the construction of his house inserts beams or pillars into the

wall on his side the other owner has no cause for complaint unless the acts alleged amount to his ouster or to a destruction of the party-wall. In this

connection reference may be made to the decision of Chandavarkar and Aston, JJ., in Kalishankar v. Bai Kashi (1904) 6 Bom. L.R. 682, based

on the principle that before a party could prevent any particular user of the common wall by his neighbour, he must establish ouster or the

destruction of the party-wall by such user. That was a case where the defendants inserted beams into the party-wall, the beams being supported

also by pillars standing outside the party-wall, and the finding on the facts of the case that this did not amount to an ouster or destruction of the

common-wall was accepted. The question will ultimately depend on the facts of each case. What interference would amount to ouster or

destruction of the common-wall or wrongful interference with the rights of the co-owners, will have to be deter mined as and when the occasion

arises and on the facts of the case. As is observed in Baij Nath Vs. Janki Prasad, in the case of a party-wall each co-owner is entitled to

reasonable user of the wall owned in common and so long as each co-owner used it reasonably without interfering with the enjoyment of that wall

by the other co-owner or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to

do what he likes.

In the present case, where the plaintiff has come to Court claiming injunction against the defendant''s interference with his proposed construction

without informing the defendants specifically the nature of the construction which he proposes to put up. In the absence of plans and specifications

it would be impossible to determine whether the insertion of the rafters in the common-wall would be a reasonable user or weaken or endanger the

defendants'' building. In Kanakayya v. Narasimhulu (1896) ILR 19 Mad. 38 at 40, this Court laid down the proper approach to a case where

one-co-owner of a wall intended to put up any construction. It was observed:

On further consideration, however, I have arrived at the conclusion that the better rule to lay down is the simpler one enunciated in Watson v. Gray

(1880) L.R. 14 Ch. D 192, since it will compel such of the owners of party-walls at are desirous of adding to, or otherwise materially interfering

with the common property to obtain beforehand the consent of the others interested in it to the change being effected, and consequently is the one

less likely to lead to disputes among joint holders of party-walls.

Of course, if the opposite party unreasonably withholds its consent, it will be open to the party proposing to put up the construction to seek relief

by way of injunction from the Court. Withholding of consent to any reasonable user will itself amount to ouster. If consent is withheld to any

particular proposal the Court will be in a position to consider whether the proposal would amount to wrongful interference with the rights of the

objecting co-owner. It can judge whether it would weaken the common-wall or otherwise materially interfere with the objecting co-owner''s user

of it. As already stated, in the present case the plaintiff has rushed to Court and sought an injunction against the defendants without formulating

specifically his proposals in regard to the putting up of rafters on the common wall. While the decisions of the Court below completely rejecting the

plaintiff''s claim in a cast where the common wall is the joint property of adjoining owners without any reservation, may not be maintainable, I do

not think the Court can give any positive relief to the plaintiff in this case. It will be open to the plaintiff to intimate to the defendants the

constructions which he proposes to put up and the user of the common-wall which he intends giving details, and if the defendants unreasonably

withheld cement, the plaintiff would be within his rights in approaching the Court for necessary relief. In all likelihood if the defendants find that their

interests are amply safeguarded and security measures proposed that the wall does not get weak, they may readily consent without necessitating

the plaintiff''s resort to Court. Having made this position clear, this Second Appeal is dismissed. No costs. No leave.