Eaghmal and another vs Ram Narain and others

Nigam, J.C.

Ramnarain and three others filed Civil Suit No. 162 of 1939 against Baghmal and another. The plaintiffs prayed that the wall between the shops of the parties be declared joint and four rails inserted by the defendants in the joint wall be ordered to be taken out, as also some new structure mentioned in the plaint resting on the joint wall be demolished. It was also prayed that the damage to the joint wall by scraping be got repaired and Rs. 100/- be paid to the plaintiffs as damages for injury done to the plaintiffs'' wall. A perpetual injunction restraining the defendants from building upon the joint wall without the plaintiffs'' consent was also claimed.

The suit was contested and the learned Additional Subordinate Judge decreed the plaintiffs'' suit for a declaration that the wall between the parties was joint, allowed the plaintiffs a money decree for Rs. 100/- and directed issue of a pertain injunction restraining the defendants from building upon the joint wall without the consent of the plaintiffs. A further injunction restraining the defendants from resisting the plaintiffs in putting iron rails in the party wall like the ones put up by the defendants was also issued. Against that judgment and decree, two appeals were filed in the court of the District Judge, Baghmal, defendant, filed Civil Appeal No. 122 of 1943 challenging the whole judgment and decree of the first court.

The plaintiffs filed Civil Appeal No. 150 of 1943 praying that the reliefs not granted by the first court be granted to them. The two appeals, as they arose out of one judgment, were heard together and were disposed of by one judgment dated 13-3-1952. The learned District Judge dismissed both the appeals and now the defendants have come up in second appeal praying that the decree granted to the plaintiffs be set aside.

The plaintiffs have filed a cross-objection urging that the learned District Judge has not properly dealt with the subject of scraping of the wall and was in error in not ordering the removal of the iron rails inserted in the joint wall by the appellants and also in not directing the removal of other constructions made by them without the consent of the respondents. The third contention is that the learned District Judge should have ordered the appellants to restore the joint wall to its original condition. In the appeal and cross-objection, I have heard the learned counsel for the parties.

In the appeal only three points have been urged by the learned counsel for the appellants. His first contention is that the wall in question is not a joint wall. The learned counsel contends that the learned trial Judge was wrong in deciding the question on a presumption that the wall between the parties must be joint. The learned counsel''s contention is that there is no evidence on the record. It is true that the evidence on the record is not over abundant and that much material which should have been on the record, is not there.

But I find (at page 41 of the paper-book) that the defendant himself stated that the plaintiffs shop had four walls. He also stated that he could not locate the fourth wall of the plaintiffs shop which is the wall towards his shop. He also vaguely stated that the plaintiffs might be having their fourth wall adjacent to the wall belonging to the defendant. He could not give the thickness of his own wall. It thus appears to me that there are not two walls at ail. According to the defendants the plaintiffs certainly own a wall near defendants'' shop. Thus either the wall in question belongs exclusively to the plaintiffs or as alleged by them it is a joint wall. In any case, there was some evidence on record and the finding of fact arrived at by the learned District Judge is binding on me.

The second point raised in this appeal is as to the decree for Rs. 100/-. The learned counsel urges that the plaintiffs were not entitled to any cash payment. Though the plaintiffs had in para 7 stated that damage had been done to their wall, it is their case that the wall belonged to the parties. In that view, I am of opinion that the plaintiffs were not entitled to any decree for cash payment. All that they were entitled to was that the wall be put in its original condition. I would, therefore, amend the decree granted to the plaintiffs and direct that a sum of Rs. 100/- be paid to the plaintiffs who should out of this sum get repairs done to the wall and put it, as nearly as possible, in its original condition. The plaintiffs will have to render accounts and to return any amount left over with them, to the defendants.

The third contention of the learned counsel is that the learned Subordinate Judge was wrong in issuing an injunction restraining the defendants from resisting the plaintiffs if they want to put up iron rails in the party wall like the ones put up by the defendants. The learned counsel has urged that this was not prayed for. I am of opinion that as the relief claimed by the plaintiffs for the removal of the four iron rails of the defendants had not been allowed, it was necessary to put the parties on an equal footing and therefore to restrain the defendants from resisting plaintiffs if they chose to put their iron rails in the same wall. I would, however limit this injunction to four rails to be inserted by the plaintiffs. This will include the insertion of any slabs etc, that might be necessary for the insertion of the rails.

No other point has been pressed before me in this appeal.

The appeal has been allowed only to a minor extent. I, therefore, direct that in the appeal, the appellants will get 1/4th (one-fourth) of their costs from the respondents and nay 3/4th (three-fourth) of the costs of the respondents.

As regards the cross-objection, three points were raised but the first point has not been pressed. So far as the second point is concerned, the learned counsel has urged that the learned Subordinate Judge should have ordered the removal of the iron rails. The learned counsel has referred me to the judgment of this Court in Civil Second Appeal No. 30 of 1934. The facts of that case were, however, different. In that case, one of the joint owners had constructed a staircase in the open roof thereby restricting the use of the Joint roof by the other owner. In this particular case, the use of the wall by the defendants does not prevent a similar use to the plaintiffs. I am, therefore, of opinion that it was not necessary to direct the removal of the iron rails inserted by the defendants.

The learned counsel has also urged that the learned District Judge should have directed that the joint wall should be restored to its original condition. This has already been done by me, the work to be done out of the sum of Rs. 100/- granted to the plaintiffs.

No other point has been pressed before me.

The cross-objection is also partly allowed. In the cross-objection, the parties will bear their own costs.