Co-owners cannot make unauthorized construction on a party wall without consent. Rights defined in Ext. C restrict the actions of the co-owners.

1. This is a Second Appeal by the defendant whose resistance to the plaintiff's suit proved unsuccessful in both the lower courts. The dispute between the parties relates to the right in respect of a wall standing between the properties owned by them. This wall is described in the B schedule attached to the plaint. The property described in the A schedule is the property to the plaintiff. The plaintiff's property is comprised in S.No. 977 while the defendant's property is comprised in S. No. 976. According to the plaintiff the wall described in the B schedule is within S. No. 977. His complaint is that the defendant is unauthorisedly interfering with this wall by raising its height to suit his convenience in connection with the construction of the upper storey of his building situated in S. No. 976. Since the defendant was disregarding the protest made by the plaintiff and was bent upon proceeding with the work of raising the height of the wall the present suit was instituted for a declaration of the plaintiff's title to the wall and for an injunction to restrain the defendant from interfering with the wall in the manner already stated. Subsequent to the institution of the suit the defendant appears to have completed the work objected to by the plaintiff. Accordingly the plaint was amended by adding a prayer for a mandatory injunction to compel the defendant to remove the unauthorised construction over the wall in question. The defendant resisted the suit mainly on the plea that the site occupied by the wall was part of his own property comprised in S. No. 976 and that the plaintiff had no right to the wall. This contention was repelled by both the lower courts and it has been concurrently found that the wall in question is standing within the property comprised in S. No. 977, the title of which is with the plaintiff.

2. When this Second Appeal came up for hearing on a prior occasion this concurrent finding against the defendant-appellant on the question of title to the property was not challenged. But the defendant took up the position that as per the terms of the agreement entered into between the original owners of the properties comprised in S.No. 977 and S. No. 976 from whom the plaintiff and the defendant have acquired their respective titles and which have been embodied in Ext. C the defendant has the right to put up the structure over the wall by raising its height to suit his own convenience. Since this question had not been separately considered by the trial court, a specific issue on this question was raised by this court and the case was remanded to the trial court for considering that issue and for recording a finding on that issue. That issue is to the following effect:

"Whether the defendant was entitled under Ext. C to raise the height of the wall and to use it to support the superstructure of his two-storied building".

On this issue the trial court found that the defendant is not entitled to raise the height of the wall and use it to support the super-structure of his two-storied building. The appellate court also concurred with this finding. The correctness of this finding has been challenged by the defendant-appellant, when the Second Appeal came on for final hearing. In fact the only point that was pressed at that stage and which has to be decided in the Second Appeal is whether the trial court's finding on the additional issue is correct or not.

3. It is clear from Ext. C that the defendant's predecessor-in-interest had sought for the permission of the plaintiff's predecessor-in-interest to put up a new wall on the northern portion of the latter's property in place of a mud wall that was already in existence at that spot and that such permission had been granted as per the terms embodied in Ext.C. It was in token of the acceptance of those terms that the defendant's predecessor gave the letter Ext.C to the plaintiff's predecessor-in-interest. Even in the opening clause in Ext.C an undertaking was