Tara Chand vs Keshar Dass

V.K. Jhanji, J.—This is defendant''s second appeal directed against the judgment and decree for the Court''s below whereby suit of the plaintiff for permanent injunction has been decreed against the defendant.

Plaintiff filed suit for permanent injunction restraining the defendant from raising any construction on joint wall A-B shown in red colour in the site plan attached with the plaint. Case of the plaintiff was that he is owner of house shown in the site plan attached with the plaint whereas defendant is owner ''of house adjoining , the house of the plaintiff. Plaintiff, however, contended that there is a common wall separating their houses and the wall has been shown in red colour as AB in the plan. Plaintiff contended that the defendant threatened to raise construction on common wall. Hence, suit for injunction.

Defendant, on notice of the suit, in his written statement, contended that the wall in question was not a common wall but exclusively belongs to him. On the pleadings of the parties, the following issues were framed :-

(1) Whether the wall in question is a common wall of the parties? If so, to what effect? O.P.

(2) If Issue No. 1 is proved, whether the plaintiff is entitled to injunction as prayed for?

(3) Whether the suit is not maintainable in the present form? O.D.

(4) Whether the defendant is entitled to special costs u/s 35-A CPC?

(5) Relief.

Both the Courts below, on appreciation of evidence on record, have concurrently found that the Wall A-B is a common wall and separates the houses of the plaintiff and defendant, The only contention raised by the learned counsel for the defendant is that once the wall has been held to be a common wall, no injunction could have been issued against the defendant for not raising any construction over the common wall as being the co-owner, the defendant has every right to use the common wall in a reasonable way.

Against this, it has been contended by Mr. Puneet Bali, Advocate, counsel for the respondent that no such plea was taken by the defendant in appeal and the only contention raised before the first Appellate Court was in regard to the validity of the report of the Local Commissioner.

After hearing the learned counsel for the parties and on going through the record, I am of the view that since the wall has been held to be a common wall, the defendant has a right to use it in a reasonable way. He can even raise its height provided he admits the newly erected portion of the wall, a joint property of all the co-owners. He can also support his building on the common wall if that does not cause damage to the other co-owners. In this context, see judgment in Sardari Lal Gupta v. Siri Krishan Aggarwal, 1984 All India Hindu Law Reporter 458. In this case, it has not been proved that the construction to be raised by the defendant would cause damage to the house of the plaintiff. Plaintiff will have a cause only if it is proved to the satisfaction of the Court that the construction to be raised by the defendant would cause damage to the house of the plaintiff. Accordingly, in absence of any evidence in this regard, plaintiff is not entitled to the injunction restraining the defendant from raising any construction on the joint wall A-B shown in red colour in the site plan attached with the plaint. Consequently, the finding in regard to Issue No. 1 is affirmed but in regard to Issue No. 2, it is held that the plaintiff is not entitled to the injunction as prayed for. Accordingly, this appeal is allowed and the judgment and decree of the Courts below to that extent is set aside.