Ramesh Chand vs Santoshilal - 1997 Supreme(MP) 1166

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Cases Referred :
Hindustan Aeroneutics v. Ajit Prasad, AIR 1973 SC 76
Fuzhakkal Muttappu v. C. Bhargavi and others, AIR 1977 SC 105

Headnote:(1) Civil Procedure Code, 1908 – O. 39 R. 1 and 2 – common wall likely to be damaged by insertion of girder – irreparable injury would be suffered by the another co – owner.
       (2) Common – wall – common wall likely to be damagbed by insertion of gurder – irreparable injury would be suffered by another co – owner.
        Short Note
       1. This is a plaintiffs' revision. The revision is filed against the order refusing to grant temporary injunction by the appellate Court affirming the order passed by the trial Court. According to the plaintiffs, there is a common wall on the northern side between the houses occupied by the plaintiffs and defendants. The plaintiffs alleged that the defendants are making construction over the common wall. They want to insert iron girder in the common wall. According to the plaintiffs, if such act is permitted then the common wall is likely to be damaged.
       2. The defendants are trying to insert girder in the common wall which may result into damage of wall and ultimately the house of plaintiffs may fall down. They, therefore, moved an application for temporary injunction restraining the defendants from damaging the common wall. The claim was denied by the defendants and the defendants have asserted that the wall is not a common wall and owned by the defendants themselves. There are almirahs on their side of the wall. The wall is in dilapidated condition and requires repairs. The trial Court rejected the application. In appeal the first appellate Court found that the defendants have raised 4 feet wall and now proceeding to insert a gurder in the wall. The learned appellate Court considered the sale – deed and report of the Commissioner. From the report of the Commissioner a conclusion was drawn by the appellate Court that the wall is owned by the defendants.
       3. Learned counsel for the applicants/plaintiffs invited attention to the sale – deed and submitted that according to the sale – deed, the property owned by the plaintiffs from East to West is 56 – 1/4 and 13 – 1/4 on the North side direction.
       4. The width of the house on the eastern side is 15 – 1/4 and on the western side the width is 13 – 1/4. Learned counsel submitted that the appellate Court has wrongly recorded that their land is only 12. The appellate Court wrongly held that from Commissioner's report the construction is 12 8" and 12 6". Learned counsel submitted that since the minimum area is 13 1/4', the entire construction is within their land. The order has resulted into misreading of the sale – deed. He further submitted that the appellate Court has considered part of the report of the Commissioner and Commissioner's report was not read fully. From perusal of the Commissioner's report it is apparent that both the sides have constructed almirahs in the common wall. Learned counsel submitted that when there is a common wall between the parties, no construction can be permitted without the consent of other person. Under the law the plaintiffs and defendants are the co – owners of a joint wall. A co – owner of a joint wall is not entitled to raise its height or otherwise deprive the other co – owner the use of such wall without the later's consent either express or implied. The important question involved in the case whether there is likelihood of damage to the wall in inserting girders in the wall or the wall is not common but it is a partitioned wall between the houses of plaintiffs and defendants.
       5. Learned counsel for the respondents/defendants vehemently opposed the contention of the applicants and submitted that in this revision no interference is called for unless the applicants are able to demonstrate the material irregularity committed by the appellate Court. Learned counsel for the respondents relied upon the judgment of the Apex Court in the case of Hindustan Aeroneutics v. Ajit Prasad (AIR 1973 SC 76) and Fuzhakkal Muttappu v. C. Bhargavi and others (AIR 1977 SC 105) and submitted that the order does not call for any interference.
       6. After hearing both the counsel for the parties it is apparent that the Courts below have not considered this fact that the wall actually partitions both the houses and at this stage ownership of the wall cannot be determined. When a common wall exists between the parties, it is a primary duty of the Court to examine, whether there is any likelihood of damage to the wall. If damage may result into further deterioration of the house of the plaintiffs then it will amount to an irreparable loss and injury to the plaintiffs. The position emerges that in such circumstances if the one of the two tenants in common of a wall between the two houses excludes other from use of it by placing a construction on it then the party is entitled for an injunction or for the remedy to remove the obstruction.
       7. Another question the Court ought to have considered whether the wall is being damaged and will result into an irreparable loss to the plaintiffs.
       8. All these questions likelihood of damage to the wall, loss to the plaintiffs if some construction is raised or girders are inserted in the wall partitioning both the houses have not been considered by the appellate Court. The appellate Court has simply considered the report of the Commissioner and passed the order. The material irregularity is committed by the lower appellate Court in not considering the facts and likelihood of damage to the wall. Without considering all these aspects the application was rejected. At this stage the plaintiffs have to demonstrate that there is a serious question to be tried which can only be adjudicated in the trial. At this stage it cannot be' determined whether the wall belongs to the defendants of the plaintiffs and the effect of construction over the wall.
       9. In the result, the revision succeeds and the order of the appellate Court is set aside. The first appellate Court is directed to consider the aforesaid directions while deciding the appeal. The case is remanded back to the appellate Court for decision of appeal according to law. In the meantime, status – quo in respect of the wall shall be maintained by the parties. The appellate Court is directed to decide the appeal before commencing of summer vacation.