A party-wall between two houses is presumed to be the common property of the owners of both houses as tenants-in-common.

SHIVDAYAL, J.

1. In this second appeal the dispute is about a wall between the houses of the plaintiff and the defendant firm. The disputed wall "measuring 370ft-6 inches in length," is denoted by the letters K. Kha in the paint sketch. To the east of this wall is the house of the defendant firm which was sold to it by the plaintiff on June 28, 1920. To the west of the disputed wall is the plaintiff's house.

2. The plaintiff claimed the disputed wall as his property. His grievance in the plaint was that the defendant made certain encroachments on it. He prayed for a declaration of title to and possession of the wall as also for the removal of all encroachments made by the defendant and for an injunction to restrain it from making any further encroachment. In the alternative he claimed a declaration that the wall was a party-wall and that the defendant had no right to encroach upon it while the plaintiff had a right to use it to the extent of half the width.

3. The trial Court dismissed tie suit holding that that plaintiff failed to prove his title His first appeal was also dismissed. Since the suit was instituted on February 2, 1944 when the Gwalior State Civil Procedure Code (Zebta Diwani) was in force, this appeal has to be decided under Section 525 of that Code, although in the memorandum of appeal the plaintiff has mentioned Section 100 of the Code of Civil Procedure as applicable to it Under section 525 the appellant is entitled to be heard on questions of fact as well.

4. The plaintiff examined several witnesses, namely Ram Prasad, Hoharilal, Gopa, Jiya Narain, Ram Karan and Saligram, who stated that in their opinion the disputed wall belonged to the plaintiff because they had been seeing the wall for a number of years and the defendant had made new constructions when it encroached upon it. Having gone through their statements I find that no useful assistance can be bad from their evidence. Their testimony is vague and indefinite, they have no solid basis of their opinion as regards the ownership of the wall. Anant Abhyankar was produced by the plaintiff to say that the defendant made certain constructions after obtaining permission from the Municipality, His evidence too is of no value on the question of ownership of the disputed wall. Plaintiff examined himself and stated that the wall belonged to him and whenever be got information that the defendant was encroaching upon it he objected. From his statement also it cannot be ascertained when this wall was constructed and by whom.

5. The defendant examined Bishannath, Harish Chandra, Bati and Raghubar Dayal. Their evidence is no better. They too did not disclose any reliable basis for their information. Ragbubardayal is the son of Radha Kishan, who was alleged in paragraph 2 of the plaint to be the karta of the defendant firm and this fact was admitted in the written statement. Radha Kishan did not examine himself. Raghubar Dayal's explanation was that Radha Kishan was in a weak state of health and was also short-sighted Raghubar Dayal's age at the time of his deposition (on 10-1-51) was 42 years which means that he was of 11 years in 1920 but Radha Kishan must have been fairly grown up when the property was sold to the defendant firm in 1920. At any rate, Raghubar Dayal did not state in clear terms that the disputed wall was specifically sold by the plaintiff to the defendant firm. Like the plaintiff, be stated that the wall belonged to the defendant firm,

6. From the above resume it is apparent that both the sides could not state with any amount of definiteness by whom the wall was constructed and when. It appears from the evidence of Ahsanullah Khan, whose evidence I shall have the occasion to discuss later, that the wall was quite an old one. It is a single wall between the two houses of the parties. To resolve the dispute of this nature oral evidence is really of little worth. Documentary evidence and constructional situation go a long way to determine whether suc