LODHA, J.—This is a plaintiffs second appeal arising out of a suit for injunction for restraining the defendant from, interfering with the moiety of common wall on his side, intervening the houses of the parties in the third storey and for a mandatory injunction also for demolition of that part of the construction in the defendants house which had been made to rest on the wall in question.

2. The facts are not in dispute. There is a common wall between the house of the plaintiff and the defendant. The width of the wall is 16*. In the third storey the plaintiff raised the width of half the party wall on his side leaving the moiety of the wall on the side of the defendant for the letters use. The plaintiff then built his third storey by making use of the moiety of the wall on his side. Some time in the year 1954 A, D. the defendant also raised construction in the third storey of his house by fixing some patties etc. in the moiety of the wall on the plaintiffs side. The plaintiff filed the present suit on 27 10-1960 alleging that the defendant was not entitled to use the moiety of the wall on the plaintiffs side as it constituted a violation of the plaintiffs rights. He prayed for a mandatory injunction for removal of the defendants patties and slabs on his half side of the joint wall in the third storey and also prayed for issue of a perpetual injunction restraining the defendant from interfering with it in future. The defendant contested the plaintiffs claim on the ground that the plaintiff was not entitled to raise the width of half of the party wall on his side without permission of the defendant and since he had done so the defendant was entitled to use the whole width of the party wall.

3. The learned Civil Judge, Udaipur by his judgment dated 31.1.1963 decreed the plaintiffs suit directing the defendant to remove the patties fixed by him in the wall in question in the third storey, and further restrained him from interfering with the plaintiffs moiety of the party wall in future. Aggrieved by the judgment and decree of the trial court the defendant filed appeal in the Court of District Judge, Udaipur, who allowed the appeal set aside the judgment and decree of the trial court and dismissed the plaintiffs suit. Consequently, the plaintiff has come in a second appeal to this Court.

4. The only question for determination in this second appeal is whether the action of the defendant constitutes a violation of the plaintiffs right and whether the plaintiff can ask for a mandatory injunction ?

5. It was held in Roopchand v. Poonam Chand (i) that it is not open to a Co-owner of a joint wall to raise its height or otherwise deprive the other co-owner of the use of such wall without the letters consent, whether express or implied, and where such unauthorised interference is established a case does arise for the grant of a mandatory injunction. In the present case the party wall has not been raised in its full width, but the plaintiff has confined himself to that moiety of the wall which is on his side and left the other moiety to the defendant. Learned counsel for the appellant, therefore, contends that as the plaintiff has not occupied the whole of the width of the common wall in the third storey but has raised its height towards his side only to the extent of half the width of the wall, the defendant has no right to rest his patties on the moiety of the wall on the plaintiffs side and must use the moiety of the wall on the other side for his benefit. To this contention) I am unable to accede This is a case of party wall of which both the plaintiff as well as the defendant are to use the phraseology of English law of tenants-in-common.

6. Learned counsel far the appellant relied on Daudkhan Musekhan vs. Chandulal Kanhyalal (2). The facts of that case were that the defendant while re-building his house built beyond the middle line of the party wall, and the plaintiff prayed for a mandatory injunction for removal of the encroachment by th

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