If a party-wall is built upon without the consent of one of the parties, he can get the obstruction removed.

Kapur, J.

1. This is a defendants appeal against an appellate decree of Additional District Judge N. L. Vijh, dated 16-8-1951 modifying the decree of the trial Court and giving a mandatory injunction against the defendant.

2. The plaintiff owns the house No. 3210 in Kucha Baga-ullan Khan and the defendant purchased the adjoining house which is on the north of the plaintiffs house. The defendant started raising the northern wall of the porch of this house to which objection was taxen by the plaintiff on the ground that the well was his. He, on 22-6-1946, made a report to the Police complaining about this alleged unauthorised construction. He also sent a telegrapnic notice to the defendant warning him not to build and to remove the structures that he had already built. The defendant has also stated as D. W. 9 that after the wall had been built some persons on behalf of the plaintiff came to see him in regard to the wall. The plaintiff then brought a suit on 20-7-1943 for a declaration that the wall in dispute was his and for a mandatory injunction against the defendant to remove the disputed wall of his room built on the northern wall.

3. On 2-8-1947 the plaintiff made an application for the temporary injunction which was granted and the next day or the day following he made an application for the appointment of a commissioner to see as to how much construction had already been made, but the Court did not agree with this. On 29-8-1947 the plaintiff asked for action being taken for disobedience of the injunction and a local commissioner was appointed on the following day, and he made a report that the walls had been built but the rafters of the roof had not yet been put.

4. The appellate Court as well as the trial Court have found that it has not neen proved that the wall belongs either to the plaintiff or the defendant and that it is therefore a joint or a party-wall. It is in these circumstances that it has to be determined as to what is the consequence of the defendants building on this wall. The learned Judge has directed a mandatory injunction for the removal of the wall of the room which has been built.

5. Several cases have been cited before me. On behalf of the defendant appellant it is argued that the removal of the wall should not be ordered, but the order should be, as was made by the Bombay High Court in -- Daood Khan v. Chandu Lal, AIR 1923 Bom 370 (A) that that portion of the wall which goes beyond the middle line of the wall belonging to the plaintiff should be declared to belong to the plaintiff. But, I with very great respect, am unable to agree that this lays down a correct law because it seems to be contrary to the weight of opinion of other Courts. Besides, in this Bombay case the encroachment was very small and according to the finding the building of the wall gave support to the wall of the plaintiff. The correct rule, in my opinion, has been laid down by a Division Bench of the Lahore High Court presided over by Sir Shadi Lal C. J. in -- Ganpat Rai v. Sain Das, AIR 1931 Lah 373 (B), where it was held that parties are in such cases tenants-in-common and the wall cannot be treated as a wall divisible longitudinally into two strips, one belonging to one neighbour and the other to the other, and the plaintiffs in that case were held entitled to the use of the whole width of the top of the wall subject to similar rights of the defendants and the construction on the wall amounted to an ouster. The learned Chief Justice followed an English judgment in -- Watson v. Gray, (1880) 14 Ch. D. 192 (C), where it was held that the ordinary meaning of the term party-wall is a wall of which the two adjoining owners are tenante-in-common, and if one of the two tenants-in-common 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. In another English case, -- Stedman v. smith, (1857) 8 El & B1 1 (D), Crompton J. observed:

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