Owner of the partition wall can enter into premises of neighbor for repairing his wall.

The defendant is the appellant. The suit was for a declaration that the northern wall of the plaintiff’s house belonged to him exclusively and for an Injunction restraining the defendant from preventing the plaintiff to enter into the defendant’s premises for the purpose of repairing that wall. The ownership of the wall was in dispute as the defendant contended that the wall in question belonged to him exclusively. The finding of the lower appellate Court is that the plaintiff has established title to the wall and following the decision reported in Bhagavathula Subramania Sastri v. Bhagavatula Lakshminarasimham1 , the learned District Judge held that the plaintiff is entitled to the right claimed by him to enter into the defendant’s premises for repairing his wall but directed that he should be permitted to go in to the defendant’s land for repairing the wall in question once a year after giving one month’s notice in writing of the time when he intends to make the repairs and that the repairs must be made between the hours 9 a.m. and 5 p.m. and should not extend for more than one month. An injunction on those terms was granted by the lower appellate Court to the plaintiff.

The defendant, appellant, now contends while questioning the correctness of the finding of the learned District Judge with regard to the ownership of the wall in dispute, that such a right to enter into 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 only evidence in the case was that 25 years ago the plaintiff’s men went into the defendant’s property and repaired the wall in question. The decision in Baghava-tula Subramania Sastri v. Bhagavatula Lakshminarasimham1 , may not be considered to have any direct application to the facts of the present case. In that case a bench of this Court held that a house owner in order to repair his wall on his neighbour’s side of the premises has the right to go to the other side of the wall on the land of his neighbour and that such a right is in the nature of a necessary easement but that the easement does not extend to going over the neighbour’s roof for that purpose. The learned Judges further held that a person has also a right of entry into his neighbour’s house or land to protect his eaves which project over the neighbour’s house. There the plaintiff claimed the right to repair more than one wall by entering into the defendant’s property and one of such walls, W.I marked in the plan in that case, fell to the share of the plaintiff at a partition between the parties and it was held that the plaintiff was undoubtedly entitled under the partition arrangement to enjoy that wall and that the repairing of the wall was necessary for its enjoyment. The learned Judges, therefore, observed that they must look upon the right to go to the defendant’s side of the wall to repair W.I as a necessary easement and that the plastering of the wall on the defendant’s side was necessary to keep it standing.

While dealing with another wall, W.3, a newly constructed one by the plaintiff, it was observed that there was no evidence of any contract by the defendant permitting the plaintiff to go to the defendant’s side of the wall to repair it in order that his eaves might be protected. In that view they denied the right of the plaintiff to enter into the defendant’s side and repair the wall he has newly put up. The learned Judges noted that acquiescence on the part of the defendant would not amount to easement and that in the particular case there was no evidence of any customary right to support the claim of the plaintiff with regard to wall, W.3. In the present case there is no evidence to show that the wall in question is one which fell to the share of the plaintiff, under a partition arrangement. It should, therefore, be considered whether there is an obligation on the pa