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PUNJAB & HARYANA HIGH COURT
Rajendra Nath Mittal and M.M.Punchhi JJ.
Sardari Lal Gupta
Versus
Siri Krishan Aggarwal
Regular Second Appeal No. 2194 of 1978,
Decided On : MAY 1, 1984
PARTY WALL - RIGHT OF CO-OWNER - RAISING HEIGHT OF WALL - INJUNCTION - EASEMENT OF LIGHT AND AIR - RIGHT OF CO-OWNER TO CLOSE VENTILATOR - CANTONMENTS ACT, 1924, S. 2(15).
Fact of the Case:
The plaintiff and defendant were owners of adjoining houses separated by a party wall. The defendant raised the height of the wall without the consent of the plaintiff. The plaintiff filed a suit for mandatory injunction directing the defendant to demolish the raised wall and for a permanent injunction restraining the defendant from closing the ventilator of the plaintiff's house. The trial Court granted the injunctions as prayed for. Both parties appealed to the District Judge, who dismissed both appeals.
Finding of the Court:
The Court held that the wall in dispute was a party wall and that the defendant had a right to raise its height without the consent of the plaintiff, provided that he did not damage the plaintiff's property. The Court also held that the plaintiff did not have a right of easement of light and air through the ventilator in the party wall, and that the defendant was entitled to close the ventilator.
Issues: 1. Whether the defendant had a right to raise the height of the party wall without the consent of the plaintiff? 2. Whether the plaintiff had a right of easement of light and air through the ventilator in the party wall?
Ratio Decidendi: 1. The Court held that the defendant had a right to raise the height of the party wall without the consent of the plaintiff, provided that he did not damage the plaintiff's property. The Court relied on the definition of "party wall" in the Cantonments Act, 1924, which defines a party wall as a wall forming part of a building and used or constructed to be used for the support or separation of adjoining buildings belonging to different owners, or constructed or adapted to be occupied by different persons. The Court held that the party wall in dispute was used for the support of both the plaintiff's and defendant's buildings, and that the defendant was therefore entitled to use it for the same purpose. 2. The Court held that the plaintiff did not have a right of easement of light and air through the ventilator in the party wall. The Court held that a party wall is ordinarily a solid wall throughout its entire extent, and that co-owners of a party wall do not have a right to open ventilators or windows or other openings in it except by an agreement with the other owner or under a statutory provision. The Court held that there was no statutory provision or agreement between the parties that allowed the plaintiff to keep a ventilator in the party wall, and that the defendant was therefore entitled to close the ventilator.
Final Decision: The Court allowed the defendant's appeal and dismissed the plaintiff's suit. The Court dismissed the plaintiff's appeal.
In cases involving a common wall between shops, the principles derived from this judgment can be applied as follows:
Rights of Co-Owners: Each owner of the adjoining shops has an interest in the common wall and is entitled to use it reasonably for support and maintenance purposes. They may also raise the height of the wall or make structural modifications, provided such actions do not cause damage to the other owner’s property and are within the scope of reasonable use (!) .
Use and Modification of the Wall: Raising the height of the common wall or making structural changes is permissible if it is done without damaging the adjoining property and with the acknowledgment that the wall remains a joint property. Any such modifications should be reasonable and not amount to ousting or excluding the other owner from the use of the wall (!) (!) .
Right of Easement of Light and Air: The existence of a ventilator or openings in the common wall does not automatically confer a right of easement of light and air unless explicitly established through statutory provisions or agreements. The wall is generally considered a solid structure, and the right to open ventilators or windows in it is limited unless such rights are expressly granted or acquired (!) .
Damage and Damage Prevention: If a co-owner’s actions, such as raising the wall or constructing on it, do not cause damage to the other owner’s property, such actions are generally permissible. Conversely, any act that causes damage or threatens the structural integrity of the wall or adjoining properties can be challenged (!) (!) .
Finality of Findings: The determination of whether the wall is a party wall or an exclusive wall of a particular owner is a question of fact. Such findings are binding in subsequent proceedings unless shown to be perverse or otherwise legally flawed (!) .
In summary, in disputes involving a common wall between shops, each owner has a right to reasonably use and modify the wall for support and structural purposes, provided they do not damage the adjoining property. Rights of easement of light and air are limited unless explicitly established. The court's factual findings regarding the nature of the wall are binding, and actions that do not cause damage are generally permissible.
RAJENDRA NATH MITTAL, J.
1. This judgment will dispose of R. S. A. Nos. 2194 of 1978 and 584 of 1979 which arise out of the same judgment of the Additional District Judge, Jullundur, dt. 19th September 1978.
2. Briefly, the facts are that the plaintiff is the owner of House No. 12 and the defendant of Houses Nos. 13, 14 and 40. The houses of the plaintiff and defendant adjoin each other. It is alleged by the plaintiff that the wall between the houses belonged to him. There was a ventilator in that wall from which he was getting light, air and sun for the last more than 65 years and thus he had acquired the right of easement. The defendant, it is pleaded, intended to close it. It is further pleaded that the defendant constructed a pillar on the southern end of the wall without his consent and also raised the height of a part of the wall. Consequently, it was prayed that a decree for mandatory injunction directing the defendant to remove the pillar and to restore the height of the wall to its original height by demolishing the portion raised by him and for a permanent injunction restraining the defendant from closing the ventilator be passed.
3. The suit was contested by the defendant who controverted the allegations of the plaintiff and, inter alia, pleaded that the wall was common wall and that he had a right to raise the wall without the consent of the defendant. He denied that the plaintiff had acquired right of easement of air, light and sun through the ventilator. He further averred that the pillar was in existence since long and he simply renovated it. Some other pleas were also taken but they do not survive in the appeals.
4. The trial Court held that the wall intervening the house of the plaintiff and that of the defendant was common and the plaintiff had acquired right of easement of light, sun and air through the ventilator. Consequently, the suit was partly decreed and a permanent injunction restraining the defendant from closing the ventilator of the house of the plaintiff and mandatory injunction directing him to demolish the raised wall was issued by it. However, the suit of the plaintiff seeking declaration that the wall was his exclusive property was dismissed. Two appeals were filed before the Additional District Judge, one by the plaintiff and the other by the defendant. Both the appeals were dismissed by him vide judgment dt. 19th September, 1978. The defendant has filed R. S. A. No. 2194 of 1978 and the plaintiff R. S. A. No. 584 of 1975 against the said judgment to this Court. The correctness of judgment of this Court in Pritam Singh V/s. Mohan Lal, 1969 Cur LJ 627 was challenged before the Motion Bench. Consequently, the appeals were admitted to D. B. I shall first deal with the appeal of the defendant.
5. Mr. Jain contends that the appellant being a tenant-in-common of the party-wall has a right to raise its height and use it if no damage is caused to the respondent. According to him, raising of party-wall and using it by the appellant does not amount to ouster of the respondent, if the former does not dispute the rights of the latter as tenant-in-common. He further contends that the decision of the Court in Pritam Singh s case (1969 Cur L J 627) (supra) does not lay down the correct law and the decisions on which reliance was placed by the learned Judge therein are per incuriam as those cases, did not take into consideration the Indian Law but decided it on the basis of the English Law which was different from the Indian Law. In support of his contention he places reliance on Vaidya Trambaklal Purshottam V/s. Madhavji Premji,(1973)14 Guj LR 194.
6. We have given due consideration to the arguments. The question that arises for determination is whether raising of the party-wall and using it by the appellant without the consent of the respondent if the former does not dispute the character of the wall is permissible in law. The learned counsel for the appellant has challenged the correctness of Prit
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