Judgment.- The short question for decision in this Second Appeal is whether the appellant who is the plaintiff has a right to go over the vacant space of the defendant for the purpose of repairing and whitewashing the northern outer side of the plaintiff’s wall. The trial Court held that the plaintiff had such rights subject to certain limitations as to the time and extent so as not to inconvenience or cause hardship to the defendant in the enjoyment of his property. The learned Subordinate Judge on appeal held contra talcing the view that he was bound by a Bench decision of this Court in Bhagavatula Subramanya Sastri v. Bhagavatula Lakshminarasimham1, and must follow it in preference to Subramania v. Pachiappa2, a decision of a Single Judge of this Court.

The plaintiff and defendant are owners of adjoining properties, the defendants being the owner of the northern property. The houses faced east and between the houses of the plaintiff and the defendant there is a strip of vacant land. Normally there would have been no obstruction to the plaintiff having access to the northern side of his compound wall for repairing, over the space of the defendant. But he brought this opposition to the course from the defendant by his own act, namely his instituting the suit O.S. No. 212 of 1956 on the file of the District Munsif’s Court, Coimbatore, claiming title to the vacant space and a mandatory injunction for pulling down some construction which the defendant had erected. It is an admitted fact that the plaintiff had been over this vacant space to repair his wall once about five years prior to this suit. The defendant would have it that it was by consent. Be it express consent or tacit acquiescence, so long as he is not inconvenienced and no rights are claimed, the neighbouring landowner generally does not object to such access for repairs. The wall in question was in the open and the right asserted by the plaintiff in this suit is the right of access over the available open space to repair and whitewash the northern face of the wall periodically. The wall is an ancient one and accordding to the plaintiff has been in existence for over 30 years. The defendant is a recent purchaser of his property having purchased the same in 1949, and in his deposition states that he has no knowledge if the plaintiff was whitewashing the wall before his purchase. He admits that the plaintiff has no other way except to enter his property and whitewash the northern wall. The plaintiff in his deposition has stated that his house is south of the defendants and has been in existence for over 30 years. It is elicited from him in cross-examination that till the defendant’s prior owner Chinni Thayammal constructed a wall in the open space, the plaintiff was repairing the wall under the impression that he had title to the open space. The only inconvenience pleaded by the defendant is that he intended putting up a construction, and, if the plaintiff is given the right of access, then he could not put up any construction. The apprehension is imaginary as the plaintiff cannot require the defendant to keep his land as an open space.

In Subramania v. Pachiappa1, Krishnaswami Naidu, J., observes:

" In the present case it cannot be said that the wall in question is a party wall in that sense. But it is common knowledge that the boundary walls of houses not capable of being repaired from the owner’s side are generally repaired by entering into the adjoining owner’s house and no reasonable neighbour would ever object to repairing such walls by gaining access into his house as he would be in the same position with his other neighbours with regard to repairing of boundary walls."

The argument in that case was that the right to enter the defendant’s premises to repair the wall could only be acquired by prescription as an easement and that the evidence in the case was not sufficient to establish that the plaintiff had acquired that right. The evidence in the case showed only, th

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