1994 Supreme(MP) 536

S.K. Dubey, J.
Prem Chandra Gupta v. Dr. Kailashnarayan Sharma
S.A. No. 96 of 1981 (G); Decided on 12.7.1994.

Headnote:(1) Common Wall -- each party is free to use without interference to the enjoyment of other -- none is entitled to damage or make it weak.

        (2) Common Wall -- construction on common wall by one owner -- suit delayed -- decree of demolition not justified -- further construction without consent restrained.

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        The plaintiff has come up in appeal, which was admitted by this Court on the following substantial question of law:--

        "Whether one of the co-owners of a common wall is entitled to raise the height of the wall without express consent of the other co-owner to the detriment of the interests of the latter?"

        Held : It is apparently clear that when a wall is admitted to be party-wall, the law gives right to each co-owners to reasonably use the said wall without interference with the enjoyment of the wall by the other. One must not do any thing which may damage or make weak the wall. One co-owner on top of the party wall either with the consent or acquiescence of the co-owner raise portion of the wall assumes the same character as the original party-wall. If one co-owner raises obstruction without consent of the other co-owner on the party-wall, he makes himself liable and he cannot exclude the other party from the use of the wall as before. The First Appellate Court in view of the law laid down by this Court has held the construction so raised by the defendant will take the character of common wall and the defendant who has raised the construction cannot obstruct in the use of the wall as a common wall by the plaintiff.

        It was submitted by Shri Lahoti that the construction was raised without any express or implied consent. Therefore, the trial Court rightly directed the demolition of the wall. But, from the facts which having been found proved and the findings recorded by the First Appellate Court, it is clear that the construction of the upper storey on the common wall was started in the year 1967 which was completed in the same year, to that plaintiff did not object nor took any action. The present suit was instituted in the year 1975. Even assuming the construction started in the year 1973 the plaintiff did not take any action nor served any notice nor approached the Court at the earliest but instituted the suit in the year 1975. In view of this conduct of the plaintiff, the plaintiff-appellant is not entitled for a decree of demolition as the plaintiff by his conduct acquiescenced in the construction. True, there is a report of the Commissioner dated 14.11.1975 but that report relates to the construction of second storey which was almost at its completion as the construction was already raised to the length of 17 feet on the common wall. Therefore, in such set of circumstances when the plaintiff allowed construction to go on, it would not be proper to grant a decree for demolition of the construction so raised on the second storey.

        However, in the interest of the plaintiff in the facts and circumstances of the case and to make the decree more clear a specific direction is necessary. Accordingly, I direct that the defendant will not change the character of the common wall on the first or second storey in such a manner so as to deprive use thereof by the plaintiff. The wall in its total height and length upto second storey will remain as original, raise any further construction so as to damage the common wall or depriving the plaintiff from the user and enjoyment of the common wall. If any further construction over the common wall is necessary by the respondent, that will not be without express consent of the plaintiff-appellant. 1991 (I) JDD 25, 1979 JLJ 339, AIR 1951 Nag. 389, 1961 JLJ 491 and 1960 JLJ 419 relied on. Appeal disposed of.