Vilas Rajaram Jinavekar and Another vs Smt. Gulabi and Others

T.N. Vallinayagam, J.—The defendants are the appellants. The suit for declaration that the plaintiffs are entitled to easement right of air and light through the suit property that is 5 guntas existing on the eastern side of the wall of the fist and second floor and for injunction restraining the defendants from obstructing the plaintiffs from enjoyment of the eastern side light and air through the suit property and from constructing the structure within 3 feet of the suit property, the suit was decreed by the Trial Court and the decree came to be confirmed by the first Appellate Court. Hence, the defendants are before this Court in this second appeal.

The facts in brief are:

The property in question is a common wall in CTS 730, Narvekar Galli, Shahapur Belgaum. CTS 730 belongs to Gajanan, who died in 1982 and the plaintiff is the daughter-in-law of the said Sri Gajanana. The daughter-in-law claims the ownership on the basis of the Gift Deed executed in her favour. The defendants are the owners of CTS 729 having purchased from the original owner under a registered sale deed, dated 1.5.1982. Both the properties of the plaintiffs and defendants are divided by a common wall, which is in question. The plaintiff in the plaint admit that the wall in question is a common wall. It is further admitted by the plaintiffs that they are the owners of CTS Nos. 729 and 730 and have been for 60 years. The suit property is described by the plaintiffs as windows situated above the roof level of the house of the defendants and it is averred that they have been receiving light and air through the windows and as such, they have acquired easement right of light and air through the windows called suit properties. On the contrary, the defendants contended on the basis of the recital in their sale deed that the wall between the two houses exclusively belongs to them and it is the defendants, who permitted the plaintiffs to raise the height of the wall just to rest of (sic) the roof of their house and the windows were fixed with the permission of the previous owner on the condition not to claim an easement right of air and light. It is also denied that the windows are being used to receive light and air.

The question of law that is framed is:

Whether the lower appellate Court is right in taking the view that the wall could be common wall upto the roof level of the defendants house and there afterwards, the same wall could be of the ownership of the plaintiff in respect of first floor and second floor and not a common wall, though admitted by the plaintiffs in the plaint and holding that the averments in the plaint are incorrect?

It is vehemently contended by the learned counsel for the appellant that relying on the Division Bench decision of Pun jab and Haryana High Court in Sardari Lal Gupta Vs. Siri Krishan Aggarwal, for the following passage:

When a co-owner uses the joint wall for the improvement of his property, without injuring the wall or the adjoining property and not claiming the additional structure as his own it cannot be said that the co-owner who builds upon common wall makes an unreasonable use of common wall. Merely because a co-owner makes a profitable or reasonable use of the joint property, it cannot be and that the other co-owner is ousted as the additional structure is the property of both. If a co-owner raises the common wall and claims the additional structure as his exclusive property, it may amount to ouster of the other co-owner. If a co-owner raises the common wall and such an act is likely to cause damage to the adjoining property or the common wall the use thereof is not reasonable and any co-owner who is aggrieved may have remedy at law. When without injuring the common wall or the adjoining property a co-owner makes a reasonable or profitable use of it it cannot be said that he makes an unreasonable use of the property. The houses which the common wall divides were built many years ago; they would require repair or need modern reconstruction to suit the requirements of the occupiers. The Society moves fast, the changes are speedy and to hold that one co-owner has absolute right to prevent the other co-owner from making profitable or reasonable use of the common wall would prevent citizens from making it profitable use of their properties.

and further contended that there cannot be any easement right in respect of common wall.

On the other hand the learned counsel for the respondents relied upon a dictum of the Bombay High Court in Bai Ratangavri Vs. Manilal Mahipatram Mehta, for the following passage:

It is conceivable that the whole wall might be in existence before the house of the other co-owner was built and when the latter began to built his house by the side of that wall, there might have been an agreement between the owners of the two houses to treat the lower part of the wall in so far as it extends to the roof of the new house as joint, so that both the co-owners might treat that part of the wall as a common wall and the remaining upper part of wall might be allowed to remain the exclusive property of the owner of the house of which it is a part. Such an agreement is possible in thickly populated cities where party walls are very common. The ground of the decision in 27 Bom. LR. 503 is that the wall must have been raised with the consent or acquiescence of the other co-owner. But there is no question of the consent or acquiescence of the other co-owner where there is no raising of the wall at all and therefore the legal inference of the whole wall becoming joint would not arise in case where there is no raising of a party wall but a part of the wall is to be treated as joint by agreement.

Now the question whether putting of the wall will affect the right of the plaintiff to light and air. Of course, Punjab and Haryana High Court took a view that in any progressive society construction cannot be stopped and there cannot be any right to easement for any common wall. But, what has not been considered by the Punjab and Haryana High Court is that the right of a common wall may not be affected by the other party without the consent of other. Admittedly, there were windows and ventilators in the common wall which has been laid in 1929 or 1928. Such windows have come to state whether they are going to serve easement of necessity of air or not. The fact remains that common wall consist of windows in it. To touch the window or to close windows, the other common owner has to get permission of the plaintiffs and without that such window cannot be closed. It is exactly, the view expressed by the Bombay High Court in the reference mentioned above.

As I feel that a common wall cannot be touched by anybody to the detriment or against the wall of the other man, the possession and status of the common wall cannot be obstructed or objected by the way in which the defendants tried to do so. Though, this view has not been taken by the Courts below as this view emerges in the legal concept available on record and from the above two decisions I am inclined to take view that common wall cannot be objected by anybody which comes under common law. Otherwise, there is no meaning in calling it as a common wall. If really the defendants want to construct a house, they could as well move for consent from the other man or explain necessity of compulsion of his part to move the Court for proper and necessary directions. But, he may not suo-motu act on his own whims and fancy and try to interfere with the possession, status and structure of the common wall.

In this view, holding that there is no merit in the appeal, this appeal is dismissed. No costs.