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2009 Supreme(MP) 543
A.K. Shrivastava and A.P. Shrivastava, JJ.
Prasann Kumar Jain v. Dr. Basant Baman Rao
Writ Petition No.5581 of 2008 (Gwalior): against the order of
1/1 Additional District Judge, Gwalior, passed in Miscellaneous Civil
Appeal No.26-A of 2008; Decided on 5.5.2009.
S.K. Jain for petitioner;
Vivek Khedkar for respondent.
Headnote:(1) Common Wall -- common or party wall -- construction over with or without consent of other co-owner -- consequences of .
The disputed wall is a party wall, therefore each co-owner (plaintiff and defendant) can reasonably use it without interfering with the enjoyment of the wall by the other but he must not do anything which may damage or weaken the wall. Further it has been laid down in the aforesaid decision that if the co-owner builds a new piece of wall on the top of the party wall, the raised portion of the wall assumes the same character as the original party wall. So far as the factum of obtaining the consent of co-owner of the party wall (plaintiff) is concerned, it is found that the same is not being given by the plaintiff, because it is his case that he asked the defendant not to raise any construction in the party wall. Hence, according to us, the defendant/petitioner, who is an adjoining owner is entitled to remove and replace his share in the party wall for the purpose of raising the construction of his house because the plaintiff has not given his consent. The logic behind to take consent is that smoothly and without causing any damage to the other party, construction of the party wall after dismantling it may take place. According to us, if a party does not give his consent, it would not mean that other party will never raise construction in its perpetuity and would allow the wall to be more weaken and would permit the said wall to fall down which may result in causing damage to his house. 1960JLJ419 relied on. 1979JLJ 539, 1997(II)MPWN 93, 1994(II) MPWN 163 and 1996(1) MPWN 200 distinguished. [Para 19
(2) Common Wall -- common or party wall -- can be used in following senses.
The term "party wall" may be used in four different senses, as meaning (1) a wall of which two adjoining owners are tenants in common; (2) a wall divided vertically into two strips one belonging to each of the adjoining owners; (3) a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements; (4) a wall divided vertically into halves, each half being subject to a cross easement in favour of the owner of the other half. Halsburys Laws of England, 4th Edn. Vol.IV page 393, para 889 relied on.
[Para 20
(3) Common Wall -- common or party wall -- ownership and use of.
Generally a party wall is a wall erected and standing on a line between two estates or tenements owned by different persons for the use in common of both estates or tenements, and each owner owns in severalty as much of the wall as stands on his own land, subject to the easement of the other owner of support of his building from the entire wall and of the maintenance of the wall as a party wall. Corpus Juris Secundum Vol.69 page 2 relied on. [Para 21
(4) Common Wall -- Common or party wall -- may be replaced by either owner if has become dangerous with consent of another. Corpus Juris Secundum, Vol. 69, p.16 relied on. [Para 22
(5) Civil P.C., 1908 -- 0.39 Rr.1 and 2 -- party wall -- trial Court rightly exercising discretion in taking undertaking from defendant not to cause any damagest to the plaintiffs property -- no need to interfere.
According to us, the learned trial Court, before whom the discretion vests to decide the application for issuance of temporary injunction by applying the correct principles laid down to decide the application of temporary injunction, has (rightly held that although the plaintiff is having a prima facie case, but if the temporary injunction is issued against the defendant-petitioner restraining him not to raise construction, certainly he will suffer irreparable loss and degree of balance of convenience rather would be in favour of the defendant and therefore by exercising its discretion rightly it was ordered by the learned trial Court directing the defendant to give an undertaking that in case while constructing his portion including his share in the disputed party wall, any damage is caused to plaintiffs property, he will either get damaged property repaired or would pay compensation to the plaintiff. According to us, if the learned trial Court by exercising its discretion and by applying correct principle of grant of temporary injunction has decided the application of temporary injunction, the appellate Court should normally slow in interfering in the discretionary order of the learned trial Court. [Para 23
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¼3½ mHk;fu"B nhokj && mHk;fu"B vFkok lk>h nhokj && LokfeRo rFkk mi;ksx A
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A.K. Shrivastava, J. -- 1. This petition under Article 227 of the Constitution of India has been filed on behalf of the petitioner-defendant assailing the order passed by the learned Third Additional District Judge, Gwalior, in Miscellaneous Civil Appeal No.26-A/2008, whereby the order dated 3.11.2008 passed by the learned Fourth Civil Judge Class II, Gwalior, in Civil Suit No. 130-A/08, has been set aside and the application of temporary injunction filed by the plaintiff-respondent has been allowed.
2. The plaintiff-respondent filed a suit for declaration and injunction in respect to a wall, which is in between the house of plaintiff and defendant (party wall). According to the plaintiff, he is having a house, the description whereof has been given in para 1 of the plaintiff. The said house was purchased in Court sale dated 15.4.1956.
3. According to para 2 of the plaint, on the eastern side of the plaintiff's house, the house of defendant is there, which he bought in the Court sale. Further, it has been pleaded that at the time of purchase of the house by the plaintiff and defendant in the Court sale, the wall, which was in between the two houses, was kept joint and this has also been mentioned in the sale certificate of plaintiff and defendant. This wall is the disputed wall in the present suit and has been shown as "A-B" in the plaint map.
4. According to the plaintiff, the defendant has no right to remove the party wall or to reconstruct or raise any construction over it. If the disputed wall is dismantled or damaged, the staircase and other structures, which are embedded in the party wall, would fall down. According to the plaint, the disputed wall is quite old and, therefore, if any danger caused to it, the plaintiff will suffer irreparable loss.
5. It has been pleaded by the plaintiff that the defendant is raising construction in his house towards the northern side and when the plaintiff came to know about this, he requested the defendant not to damage or dismantle the party wall and further requested him to raise construction in such a manner so that the party wall may not be damaged. But, defendant became annoyed and told that despite the disputed wall is a party wall, he will dismantle and reconstruct it. He also suggested the plaintiff to remove his staircase as well as the plank embedded in the party wall. According to the plaintiff, the party wall is near about hundred years old and if the said wall is removed or is damaged in any manner, the staircase and the plank of plaintiff would be dismantled and the plaintiff would become handicapped in order to use the first floor of his house. It has also been pleaded that the defendant has no right to remove the disputed party wall.
6. On the abovesaid pleadings, it has been prayed by the plaintiff that it be declared that the defendant has no right to raise any construction on the party wall nor he has any right to remove it. Further, declaratory decree has been sought that the defendant may not remove the disputed party wall and should maintain the status quo.
7. An application for issuance of temporary injunction under Order XXXIX rules 1 and 2 read with section 151 of the Code of Civil Procedure has also been filed by the plaintiff praying that till the decision of the suit, the defendant should maintain status quo in respect to the disputed party wall shown in the plaint map "A-B".
8. The petitioner-defendant filed reply of the said application and stated that the defendant has all the right to raise and construct his house including the half portion of the disputed party wall, which is in his ownership. It has also been stated in the reply that he is not raising any construction or damaging the disputed wall of plaintiff's share. Further, it has also been stated that he is not going to damage either the staircase or the plank embedded in the party wall and even if the staircase or the plank of the plaintiff are damaged, he will get it repaired and hence it
