JUDGMENT

Tek Chand, J. - The Plaintiff-respondent Moti Ram and one Nathu Sheikh were the owners of two adjoining houses in Jullunder Cantonment, which were separated by a kacha wall 8 ft. high. Nathu died leaving him surviving a widow Mt. Manto and a brother Lal Mahammad. On 23rd August 1923 an agreement was executed between Lal Muhammad and the Plaintiff whereby the Plaintiff Was allowed to raise the height of the aforesaid wall by building it in pucca brick work and it was stipulated that the part so built would be his exclusive property. It appears that in accordance with this agreement the Plaintiff-respondent raised the height of the wall by 3 ft., building this additional portion pucca. About a year later, on 18th August 1924, Mt. Manto, widow of Nathu 2 sold the house to Makhan Lal, defendant-appellant. This sale-deed was attested by Lal Muhammad and his son Kalian but no mention was made in it of the agreement which Lal Mohammad had executed in favour of the Plaintiff on 23rd August 1923. Soon after the defendant Makhan Lal began to rebuild portions of the house which he had bought and in doing so he placed his rafters on the pakka portion of the wall intervening between this house and the house of the plaintiff, which portion the plaintiff had built in pursuance of the aforesaid agreement. The Plaintiff objected to the defendant placing his rafters in this portion of the wall and on the defendant's refusal to remove them the Plaintiff, on 1st December 1925, instituted the present suit asking for a permanent injunction ordering the defendant to remove his rafters from the portion aforesaid and not to build any structure over it nor to open any ventilators in it. The suit was dismissed by the trial Court but has been decreed by the learned District Judge.

2. On second appeal the first point taken by Mr. Ram Lal Anand on behalf of the defendant-appellant is that the learned District Judge having found that the agreement entered into by Lal Muhammad in favour of the Plaintiff was not authorized by Mt. Manto and was therefore not binding on her or her transferee, (the defendant-appellant) the learned District Judge ought to have dismissed the suit and not set up an entirely new case for the Plaintiff-respondent. I have examined the pleadings in the case and carefully considered the reasoning of the learned District Judge and the arguments of both counsel and have reached the conclusion that the point on which the learned District Judge has decided the case against the appellant is fully covered by the pleadings of the parties. It is no doubt true that in the plaint the Plaintiff relied largely on the aforesaid agreement but in para. 4 of the plaint he put forward an alternative claim independent of the agreement, and the pleas of the defendant and the evidence that he led leave no doubt that he was fully cognizant of this part of the Plaintiff's claim. Moreover, grounds 6 and 7 of the Plaintiff's memorandum of appeal to the District Judge fully set out this point, which was argued before him without any objection on the part of the defendant-appellant. I, therefore, see no force in this contention and hold that the decision of the learned District Judge is not vitiated by his having set up a case not covered by the pleadings of the parties.

3. It is next contended that the Plaintiff had claimed the wall to be his exclusive property and as soon as the District Judge found that the kacha wall was joint he should have at once dismissed the suit. I see no force in this contention also, as it is settled law that if a Plaintiff comes into Court claiming to be exclusive owner of certain property but he is found to be a joint-owner with the defendant the Courts should proceed to decide the case on the basis of joint ownership.

4. The next question which has been debated before me is whether the defendant appellant is bound by agreement which had been executed by Lal Muhammad in favour of the Plaintiff long before the defendant bought