Owners of a joint wall are tenants-in-common and cannot build on it or increase its height without the consent of the other tenants-in-common.

Bal Raj Tuli, J.

1. The plaintiff, Mohan Lal, filed a suit for permanent injunction restraining the defendants, Pritam Singh and his wife Mohinder Kaur, from interfering in the construction of the wall shown red in the plan attached to the plaint on the allegation that the wall was a joint wall of the parties and the plaintiff had the right to build thereon. The defendants resisted the suit and pleaded that the wall was not a joint wall of the parties but was exclusively owned by the defendants.

2. On the pleadings of the parties, the following issues were framed by the learned trial Court :-

1. Whether the wall in dispute is the joint wall of the parties ? If so, what is its effect ?

2. Whether the plaintiff is in possession of the wall in dispute ?

3. If issue No. 2 is not proved, whether the suit is maintainable in the present form ?

4. Whether the suit is not within limitation ?

5. Relief.

The learned trial Court held the wall in dispute to be joint of both the parties who have the right to use the same. On that basis, he held the plaintiff entitled to construct rooms by using the wall in dispute on the upper storey of his house. On issue No. 2, the decision was that the plaintiff is in joint possession of the wall in dispute and there is no question of his being in exclusive possession thereof. On issue No. 3 the suit was held to be maintainable in the present form. Issue No. 4 was decided against the defendants. As a result of his findings, the learned trial Court decreed the suit on January 30, 1969, leaving the parties to bear their own costs. Against that decree the defendants filed an appeal which was dismissed by the Additional District Judge, Gurgaon, on March 15, 1969. Pritam Singh defendant has filed the present appeal in this Court against the decree passed by the learned Additional District Judge, Gurgaon.

3. The finding of fact arrived at by both the learned lower Court that the wall in dispute is a joint wall of the parties is not being disputed by the learned counsel for the appellant. His submission is that in the case of a party wall the owners are tenants-in-common and none of them has the right to build upon that wall or raise its height without the consent of the other tenant-in-common or tenant-in-common. He has relied upon the decision of the Division Bench of the Lahore High Court (Shadi Lal, C.J., and Walker, J.) in Ganpat Rai and others v. Sain Dass and others, AIR 1931 Lahore 373. The learned Chief Justice wrote the judgment with which Walker, J. concurred. The facts were that the plaintiffs and the defendants were owners of two adjoining houses separate by a wall which belonged to both the parties as tenants-in-common. The defendants raised the height of the wall, with a view to build a super-structure on their tenement without the permission of the plaintiff. The question for decision before the Division Bench was whether the action of the defendants constituted a violation of the plaintiffs right and whether the plaintiffs could ask for a mandatory injunction. The learned Chief Justice, dealing with this question, observed as under :-

"The facts warrant the finding that the plaintiffs have been ousted by the defendants from the possession of the common wall and are entitled to remove the obstruction. The leading authority on the subject is the judgment in Watson v. Gray, (1880) 14 Ch.D. 192, in which Fry, J., laid down the rule that, if one of the two tenants-in-common of a wall between two adjoining houses excludes the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant is to remove the obstruction. This rule has been followed by the High Court in India : vide inter alia. Kanakayya v. Narasimhulu, (1896) 19 Mad. 38, Ikram Ullah Khan v. Muhammad Unis Ali Khan, (1915) 30 I.C. 33 and Basant Singh v. Shibba Mal, (1928) 107 I.C. 481. We are not concerned in the present case with the question whether a wall built on the top of a common wall by one