D.K. Murthy and Another vs B.V. Venkatesuchetti

Sriramulu, J.—This is a defendant''s appeal. The plaintiff brought an action against the defendants claiming declaration of title to the suit ''ABC wall, direction to the defendants to remove the construction at point ''B'' raised on the suit wall ''ABC and an injunction restraining them from raising further construction on their site to the South of the well ''ABC and to the East of point ''B''. The defendants did not dispute the title of plaintiff to the suit wall ''ABC.

It has been decided by both lower courts as a matter of fact that the suit wall ''ABC was constructed by the plaintiff and he has title to it.

It is not in dispute that the plaintiff and the defendants purchased their respective sites from the common owner PW2 in the year 1962. Thereafter the plaintiff constructed a terraced house in the cite purchased by him and also constructed suit wall ''ABC which divides the two sites of the plaintiff and the defendants. Both the courts found that the entire construction was made by the defendants in their own site and no part of the constructed portion rests on the ''ABC wall of the plaintiff, as alleged by him.

In this appeal, the only substantial question of law raised on behalf of the defendants-appellants is that in as much as the land belonging to the plaintiff and the land belonging to the defendants had formed one whole of land belonging to the original owner PW2 and the same having been divided into two strips and one strip sold to the plaintiff and the other adjoining strip sold to the defendants and the plaintiff having constructed ABC wall dividing both the strips of the land purchased respectively by the plaintiff and the defendants from the common owner PW2, the ABC wall constitutes as a ''party-wall'' namely, a wall in between the properties of the two adjoining owners and that the plaintiff and the defendants being tenants in common in respect of that ABC wall. Whether the defendants have a right in that capacity to make reasonable use of the wall without doing anything which would weaken, damage increase or diminish the wall enjoyed in common by both the parties and whether the plaintiff is entitled to a decree of mandatory injunction and permanent injunction for the demolition of the wall constructed by the defendants on his own site to the extent those walls touch the wall ABC at B and C points towards the side of the defendants site. The lower appellate court found that ABC wall was constructed by the plaintiff, that it lies in between the sites of the plaintiff and defendants, the house of the plaintiff lying on the north of ABC wall and the house and site of the defendants lying on the south of that wall, that the construction made by the defendants do not rest on the ABC wall of the plaintiff but they touch the ABC wall at points B and C. While the trial court held that in as much as the constructed portions of the defendants do not rest on the ABC wall as contended by the plaintiff and merely touched the ABC wall at points B and C, it is open to the defendants to use his own land as the likes subject to the exception that while doing so he must not invade the rights of the plaintiff and that the plaintiff is entitled to have constructions of his liking in their vacant site. The lower appellate court held that in as much as the ABC wall is the exclusive wall of the plaintiff, it was not open to the defendants to make constructions though on his own site lying on the south of ABC wall in such a manner that the walls of the defendants tough the ABC wall of the plaintiff at points B and C and as such the plaintiff is entitled to a decree for mandatory injunction and get the constructions made by the defendants demolished to the extent they touch ABC wall of the plaintiff at points B and C.

In its popular sense ''party wall'' usually means the dividing wall between two tenants or buildings. Gale in his ''Law of Easements'' 12th Edition at page 406 has observed that although, strictly speaking, the rights and liabilities in respect of a ''party wall'' relate principally to the doctrine of tenancy in-common, yet some of the rights partake of the character of easements. In Waston v. Gray (1880) 14 Ch.D. 192 at page 194 (Fry, J.) four senses have been given in which the terms ''party wall'' may be used. Thereafter the learned author gives four meaning or senses of the term ''party wall'' as laid down in Waston''s case in which the term may be used namely;

(1) a wall of which the two adjoining owners have rights analogous to those of former tenants-in common;

(2) a wall divided longitudinally into two portions, one belonging to each adjoining owner;

(3) a wall which belongs entirely to the adjoining owner but subject to an easement in the other to have it maintained as a dividing wall; and

(4) a wall divided longitudinally into two portions, each portion being subject to a cross-easement in favour of the owner of the other.

It will be seen from the above that the question of easement will arise only in the last two classes of party walls. It is the admitted case of the parties and the concurrent finding of the courts below in the present case is that both the plaintiff and the defendants are the owners of the adjoining strips of land purchased by them separately from the common owner PW2 while the entire land was single strip of land in the hands of PW2. What the defendants claimed in this appeal is that both the plaintiff and defendants being the owners of the adjoining strip of land divided by ABC wall have rights analogous to those of former tenants-in-common, in a case of Baij Nath Vs. Janki Prasad, it was held that in the case of a ''party wall'' each co-owner has a right to make reasonable use of the wall owned in common and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner, or without doing anything which weaken, damage, increase or diminish the wall enjoyed in common, there can be no complaint. The principle was affirmed in subsequent decision of the same High Court in Paduman Das Vs. Shrimati Parbati, . The other case referred to was one of Gulabchand Gappalal Sarawgi Vs. Manikchand Gulabchand Sarawgi, . In that case, the decision in relation to the rights of the parties with regard to a party wall or joint wall, have been considered and the same principles, as referred to above have been upheld. The deductions from such decisions in relation to rights in a party or a joint wall, can well be summed up as under: (1) Each co-owner can reasonably use it so as not to interfere with the enjoyment of the wall by the other (2) that he must not do anything which will damage or weaken that wall (3) that its user should not amount to ouster or destruction of the wall. With these limits, reasonable user of such a wall is permissible as otherwise, co-owner may never consent to reasonable use being allowed by the other co-owner and that way, deny him even reasonable use thereof though he is equally an owner thereof with the co-owner. However, if one co-owner builds a new piece of wall on the top of the party wall; either with the consent or with the acquiescence of the other co-owner, the raised portions of the wall assume the same character as the original party wall, and if one co-owner raised the wall without the consent or acquiescence of the other co-owner he makes himself liable to an action for an injunction. Thus, the rights of the parties in respect of the party wall or a joint wall between the two neighbouring houses would stand covered under a joint wall between the two neighbouring houses would stand covered under the above said principles deducted from various decisions referred to here-above. Since there is no question of raising any party wall and as all that the defendant intended to do is to put up a slab in the wall by inserting the same by four inches on one side of the wall and then plastering the same so as to be placed in its proper condition, there is neither any question of ouster or the interference with the enjoyment of the said wall by the other side nor would it amount to waste or weakening of the wall so as to forbid the defendant from making reasonable use of such a joint or common wall of the parties. No consent is, therefore, essential to be taken by one from the other co-owner, in making such reasonable use of a joint or party wall. Both the courts here below were, therefore, perfectly right in refusing to grant an injunction as sought for against the defendant in the case.

In Paduman Das''s case (3 supra) the plaintiff prayed for demolition and removal of certain constructions alleged to have been made in the intervening wall which was a joint wall of the parties. The plaintiff claimed that the defendants have no right to rest their beams on any portion of the wall. It appears from the judgment of the lower appellate Court that the respondents have placed their beams about six inches inside the wall towards their side and have covered the wall with plaster. The court observed:

Co-ownership implies that each co-owner should have a reasonable user of the thing owned in common and so long as each co-owner uses the wall reasonably without interfering with the enjoyment of that wall by the other party, or without doing anything which would weaken, damage or increase or diminish the wall enjoyed in common, he is entitled to do what he likes. A co-owner of a party wall has no right to do any act which may have the effect of excluding the other co-owner from the wall or interfere with the reasonable use of the wall. Nothing has been done by the respondents which might tend to interfere with the reasonable use of the appellant.

The law relating to rights in party-wall is settled and may be stated thus:

(1) Each co-owner can reasonably use it, without interfering with the enjoyment of the wall by the other, but he must not do anything which will damage or weaken the wall, (2) if one co-owner builds a new piece of wall on the top of the party wall, either with the consent or with the acquiescence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall, (3) if one co-owner raises the wall without the consent or acquiescence of the other co-owner he makes himself liable to an action for an injunction, (4) where a party wall is re-constructed by one co-owner at his exclusive expense it retains the original character of a party wall and he cannot ask for an injunction to restrain the other co-owner from claiming ownership in it. (Vide Gulabchand Goppalal Sarawgi v. Manikchand Gulabchand Sarawgi AIR 1960 M.P. 203 (3) Shyamlal v. Motiram 1953 Madh. BLJ 375 (6) Tmambhai Kamruddin v. Rahimbhai Usmenbhai AIR 1925 Bom. 373 (3) and Shivputrappa Parappa Kamshetti Vs. Shivrudrappa Kalappa Huli,

In the leading case of Waston v. Gray (1880) 14 Ch.D. 192, (1) it is laid down that ''if one of the two tenants-in-common of a party-wall excludes the other from the use of it by placing an obstruction to it, the only remedy of the excluded tenant is to remove the obstructions''. In this suit there is no prayer for demolition of the wall, nor was an injunction claimed of the time when the defendant started raising it.

Next, it was contended by the Learned Counsel for the respondent that, on account of the constructions made by the defendants, the widows in his own site blocked and deprived the plaintiff''s easementary right of air and light to the window which he had opened in his wall. The defendants resisted the claim made by the plaintiff and contended that the plaintiff has not acquired any easementary right. The lower appellate court has not recorded findings specifically whether the plaintiff had acquired any easementary right of air and light through the widow opened by him in the ABC wall, though it has recorded a finding that the plaintiff has been enjoying the easementary right of light and air through the said window. Admittedly, the plaintiff had purchased the land from PW2 only in the year 1962. It is only thereafter the ABC wall was constructed. In the case of Narayan Balvant Jade Vs. Shankar Waman Govaikar, the plaintiff had used for the establishment of an easement of light and air through windows which they had built in the wall interfering between their house and the defendant''s land. It was held in that case that the plaintiff had to prove that he had enjoyed light and air for 20 years as an easement, and that the, plaintiff was not entitled to claim such right as he failed to establish that he enjoyed light and air for more than 12 years. Further the plaintiff is not entitled to claim a right to free access of light and air through the window in the wall ABC as it is party wall where there an be no question of easement. (Vide Marghabhai Vallabhai v. Motibhai Mithabhai AIR 1932 Bom 543 and Rajubhai Mohanbhai Vs. Lalbhai Mulchand, .

Judged in the light of the principles discussed above, the lower appellate court has misguided itself while considering the rights of the parties in respect of the ''party wall'' or a joint wall between the two neighbouring houses and also as regards the claim of the plaintiff to easementary right of air and light through a window in a party wall.

In the result, the appeal is allowed and the decree and judgment of the lower appellate court are set aside and the plaintiff''s suit is dismissed in toto. In the circumstances of the case, I make no order as to costs.