MODI J.—This is a defendants second appeal in a suit for injunction.

2. The dispute is between the parties who are brothers to a joint wall situate between their respective house. The house of the plaintiff stands to the east to that of the defendant. The case of the plaintiff was that this wall was his exclusive property, and that while he was at Bombay, the defendant had dismantled his house and started re-budding it, and in doing so he had put in a chimney for the remission of smoke in his kitchen and set up some new Alas and almirahs (the number whereof, incidentally, was not mentioned in the plaint) and further that he was raising the height of this wall so as to build a third storey on it. The case of the plaintiff further was that as soon as he was informed of what the defendant was doing, he hastened to his village from Bombay and raised a strong protest with the defendant but without any avail. A passing reference may as well be made to one more fact, and that is that, according to the plaintiff, the defendant was building a balcony in front of his house and he had built it so as to project beyond the half of the width of the party-wall. It may at once be stated that: the trial court has ordered the removal of the chimney and also the removal of the balcony if and in so far as it projects beyond the half of the width of the party-wall and there is no dispute in this appeal about these. To resume the narrative of facts, the plaintiff later on amended his plaint and claimed in the alternative that evert if the wall in question was established to be joint between the parties, he is entitled to claim an injunction directing the defendant to demolish the party-wall in so far as he had heightened it beyond the second storey and further that an injunction should also issue against him directing him to close down the Alas and the almirahs which he had built in the wall in question and to restore it to the condition in which it stood before. The plaintiff also claimed a perpetual injunction restraining the defendant from raising the height of this party-wall without his consent in future.

3. The defendant resisted the suit. His case was that the wall in question was not the exclusive property of the plaintiff but was the joint wall of the parties, and that the former was within his rights in having dealt with the wall as he did. It was also contended that the defendant had a customary right to use the party-wall to build a third storey of his house.

4. Both courts below have held that the wall which is the bone of contention between the parties was not the exclusive property of the plaintiff but was the joint wall of the parties, and this finding must be accepted as correct in this second appeal. There is also a concurrent finding that the defendant has failed to establish the custom on which he relied, and this finding has not been seriously challenged before me nor indeed it could be. Now so far as the raising of the wall and the opening of the Alas and almirahs by the defendant is concerned, the trial court held that this was entirely harmless and had been made with the implied consent of the plaintiff, and in that view of the matter, it dismissed the suit so far as this part of the case was concerned. I have already stated above that the plaintiffs case as respects the removal of the chimney was accepted by the trial court and so also the readjustment of the balcony in so far as it encroached upon more than half the portion of the common wall, and these matters are no longer in controversy in this appeal. On appeal by the plaintiff, the learned District Judge, Pah, held that the defendant was not authorised in law to raise the height of the party-wall without the consent of the plaintiff, and that likewise he had no right to open new Alas and Almirahs in this wall beyond those which were already in existence before the defendant started constructing the house and to this extent allowed the appeal. The learned Judge therefore

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