Shantilal Ratanshi and Others vs Bai Champa Narsidas

Chhatpar, J.—This second appeal arises out of a suit filed by the Appellants for a mandatory injunction to remove construction made by the

Respondent-Defendant on a wall claimed to be a partition wall. The Plaintiffs and Defendants are the owners of adjoining houses situate at

Bhavnagar. Between the two houses, there was originally a party wall extending to the height of one storey. It appears that in the year Samvat

1932 (1875 A.D.), the predecessors of the Defendant wanted to raise construction on their property and an agreement was arrived at according

to which the predecessors of the Appellants permitted construction to be made and the party wall to be raised. The agreement shows that the

Plaintiffs'' predecessors agreed to pay a sum of Rs. 22/- in case they wanted to utilise the extended party wall for inserting beams and making other

use of the wall. Whether the amount fixed in the agreement was paid or not does not clearly appear from the evidence, but there is no doubt that

the original party wall was raised by the ancestors of the Defendant with the consent of the ancestors of the Plaintiffs.

Under such circumstances, according to the ruling of the Bombay High Court given in the case-Imambhai Kamruddin v. Rahimbhai Usmanbhai

AIR 1925 Bom 373, the raised portion must assume the same character as the old party wall. It was held in that case:

if one of two neighbouring owners raises a party wall, the other owner giving his consent or acquiescing, then the raised portion must assume the

same character as the old party wall on which it stands, and therefore neither party can be allowed to commit a trespass on the party wall so

increased, e.g., by opening windows therein. A suit for injunction directing the Defendant to close the windows so opened is governed by Article

120 and must be brought within 6 years of the opening of the windows.

The finding of the two lower Courts is that in all three storeys were existing on the Defendant''s building till about a short time before the filing of the

suit when the Defendant proposed to construct a fourth storey and a terrace and for this purpose raised the party wall. This raising of the party wall

was strongly objected to by the Plaintiffs, who ultimately filed the suit. Both the lower Courts have held that the raising of the party wall has not

caused damage to the existing wall, although it is clear that additional burden was put by raising it to the height of one storey and the parapet wall

of the terrace. The lower Courts consequently have held that as no damage was proved, the Plaintiffs were not entitled to succeed and dismissed

their suit.

Now it is admitted that the original wall between the two properties was a party wall; the raised wall in accordance with the agreement of 1875

A.D., would assume the same character as held in the Bombay case referred to above. Any further raising of the wall without the consent of the

adjoining co-owner would constitute a trespass. Both the lower Courts have judged the case from an entirely wrong view point. A co-owner of a

party wall is entitled to object to raising of the party wall without his consent and there is no question of any proof of damage being necessary in

order to sustain an action for removal of the raised portion of the party wall. This principle has been laid down by the Bombay High Court in the

case of- Shivputrappa Parappa Kamshetti Vs. Shivrudrappa Kalappa Huli, . The head-note of the report reads as under:

If one co-owner raises the party-wall without consent or acquiescence of the other co-owner, the latter can himself remove the raised portion of

the wall without rendering himself liable to a claim for damages or may come to the Court and ask for an injunction in order to get the raised

portion removed.

The learned Judge of the Bombay High Court discussed various rulings both Indian and English and came to this conclusion and reversed the

decision of the District Judge, who considered the case from the point of view whether the Plaintiff had in fact suffered any injury and if so whether

pecuniary compensation would not have afforded him adequate relief. In the present case the two lower Courts have also looked at the case from

a wrong point of view.

Following the above decisions, I hold that the Plaintiffs were entitled to an injunction compelling the Defendant to remove the raised portion ""of

the party wall. This portion would be that which is on the fourth storey and the terrace, as according to the finding of the two lower Courts this was

the only portion of the party wall raised without the consent of the Plaintiffs. I accordingly set aside the decrees of the two lower Courts and

decree the suit of the Plaintiffs to the extent as above stated. The Plaintiffs will have a mandatory injunction ordering the Defendant to remove the

portion of the raised party wall above stated. The Plaintiffs will have their costs throughout from the Defendant.