Right to demolish construction holding not justifiable.

This second appeal arises out of O.S. No. 189 of 1946 on the file of the Court of the District Munsiff, Tenali, for recovery of plaint schedule site and for removal of the wall standing thereon. The facts found and admitted may be briefly narrated. The plaintiff and defendant are the owners of adjacent houses in Tenali Municipality. In the year 1917 the defendant’s father, Ramakrishniah entered into an agreement in respect of 15-5/9 square yards in Do:r No. 55 belonging to the plaintiff. Ramakrishniah intended to, construct a building on his site and he found it necessary to have a boundary wall between his site and the plaintiff’s site. They agreed that Ramakrishniah should be allowed to construct a masonry wall on the suit site to serve as a boundary and the plaintiff should continue to be the owner of the site. Another stipulation was that Ramakrishniah should not build any house or project his eaves over the wall at any time. He also agreed to keep the said wall in good repair at all times and in case it was damaged or got demolished, he was to get it repaired and restored. According to the agreement if he did not repair it or restore it within three months from the day the plaintiff asked him to do so, she could take back the site. If the wall was kept in good condition, it was agreed that the plaintiff should not ask for the demolition of the wall or for recovery of the site. Subsequently Ramakrishniah put up buildings on his site. In so building, the roof of his kitchen was made to extend over the boundary wall by 3’ 5" The bath room also rested on the wall. The Commissioner pointed out that east of the kitchen, on the top of the boundary wall, a little southward from the middle, there were two pillars 3’ 8" high and resting on them was a wooden beam 5½" thick and on this the northern wall of the defendant’s bath room 6’ 6" by 4’ 4" was supported. So too the plaintiff in constructing her house allowed her cement beam of the terrace to rest on the wall. It will therefore be seen that notwithstanding the agreement, Ex. A-1, the plaintiff as well as the defendant made encroachments over the suit wall. Though the defendant’s constructions were made twenty-five years ago or at any rate, prior to 1931, the plaintiff did not question the same. Nor did she take any steps to enforce her rights under Ex. A-1, till she gave notice under Ex. B-1 dated 22nd February, 1946. The present suit was filed by her for recovery of possession of the site mainly on the ground that as the defendant committed a breach of the terms of Ex. A-1 she should be entitled to recover the site. She also alleged that the defendant denied her title and therefore forfeited his rights under the document. Both the Courts found that the breach of the stipulation under Ex. A-1, namely, that the defendant should not build any house or project his eaves over the wall at any time, is only a breach of warranty and not of a condition and therefore she would not be entitled to evict the defendant but would be entitled to recover damages. They also agreed in holding that the denial by the licensee of the owner’s title would not entail forfeiture. Both the Courts accepted the contention of the defendant that the plaintiff having acquiesced in the constructions put up by the defendant, she would not be entitled to an equitable relief of mandatory injunction. To avoid future troubles the appellate Court valued the site in a sum of Rs. 200 and directed the defendant to pay the sum to the plaintiff. The plaintiff preferred the above second appeal.

The first question is whether under the terms of Ex. A-1, in the circumstances that happened, the plaintiff will be entitled to evict the defendant. A perusal of Ex. A-1 shows that the parties made a clear distinction between the stipulation prohibiting the defendant from building any house or projecting his eaves over the wall and the stipulation asking him to keep the wall in good repair or restoring the wall if demoli