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Andhra High Court · body

2002 DIGILAW 341 (AP)

K. Anjamma v. D. Vanajakshi

2002-02-28

G.YETHIRAJULU

body2002
J U D G M E N T This is the second appeal preferred by the defendant in O.S.No.3339 of 1983 on the file of the 11th Assistant Judge, City Civil Court, Secunderabad and the respondent herein is the plaintiff in the said suit. The averments of the plaint are briefly as follows: The plaintiff is the owner of house No.6-6-55. Kavadiguda, Secunderabad. This defendant is the owner of the adjacent western house bearing No.6-6-56. The wall situated in between the two houses is a common wall plaintiff and defendant, which is shown as A,B,C, D & E in the plaint plan. The plaintiff came to know that the defendant wants to encroach upon the common wall by scraping out portions of the common wall A, B,C,D & E and raising R.C.C. pillars with foundations. The scrapping at some portions of the common wall would seriously endanger the safety and strength of the structures resting on the wall. Hence the suit. The defendant filed a written statement with the following averments in brief: Due to leakage of the roof, the defendant wants to change the same by erecting pillars and laying a new slab. He is entitled to erect the pillars up to a depth of 7” at points. A,B,C out of the total width of the wall of 14”. Erecting pillars by scraping the wall at points A,B,C to a depth of 5 to 6" and width of 9" will not cause any danger to the common wall. On the other hand, it strengthens the said wall. The defendant never thought of pulling down the present roof without of the consent of the plaintiff. Since the defendant has not made any efforts to endanger the common wall the suit cannot be maintained and the same is liable to be dismissed with costs. The plaintiff in order to prove the case examined P.W.1 and marked Exs.A.1 to A.5. The defendant examined D.Ws.1 to 3 and marked Exs.B.1 to B.12. Since the defendant has not made any efforts to endanger the common wall the suit cannot be maintained and the same is liable to be dismissed with costs. The plaintiff in order to prove the case examined P.W.1 and marked Exs.A.1 to A.5. The defendant examined D.Ws.1 to 3 and marked Exs.B.1 to B.12. The trial Court after considering the oral and documentary evidence adduced by both parties observed that no consent is necessary to a co-owner from the other co-owner to make reasonable use of the common wall that the plaintiff failed to establish whether any injury is or is likely to be caused to the common wall and ultimately dismissed the suit by observing that the plaintiff is not entitled for permanent injunction as prayed for. The defendant being aggrieved by the judgment and decree of the trial court dated 21-11-1988 preferred an appeal covered by A-S.No.8 of 1989 on the file of the Additional Chief Judge. City Civil Court, Secunderabad. The Ist appellate court after considering the evidence on record, the legal position and the arguments advanced by the learned counsel for both parties, observed as follows: The rafters of the roof of both the houses are running from north to south paralled to the common wall. The common wall acts as a dividing wall and for resting the shabad slabs. The defendant wants to raise the Ist floor also. In such a case, she has to scrape the roof resting the common wall ABCDE to an extent of 7 inches and the RCC Slab should occupy the scraped space on the common wall. The roof of the plaintiff would rest on the wall and columns going to be raised by her. The shabad stones resting on the common wall have to be carefully cut along the middle line on the top of the common wall. It cannot be said that the chistling of the wall at three places. A,B and C to a depth of about 6 to 8 inches and a width of about 10 to 12 inches will not reduce the strength of the common wall. The plea of the defendant that the raising of the pillars at points A, B and C will strengthen the wall is abnoxious. The pillars and the columns raised by her would not add any strength to the common wall. The plea of the defendant that the raising of the pillars at points A, B and C will strengthen the wall is abnoxious. The pillars and the columns raised by her would not add any strength to the common wall. The 1st appellate court further observed that the plaintiff and the defendant are the tenants in common. ‘ Since the wall and the land on which it stands belong equally to them and the RCC pillars raised would never add any strength to the common wall as the latter is a brick wall and the continuity and coherence of the bricks is broken at three points covered by A, B and C on the other hand, the wail is likely to develop cracks on the other side of the pillars. Therefore the acts done by the defendant do not amount to any reasonable use of the wall and it certainly calls for interference by the court. The Ist appellate court further observed that as per a decision of the A.P. High Court in D.K.MURTHY V. B.V.VENKATACHETTI (1), the defendant can always put up slab on the wall by inserting it on one side. Therefore, that portion of the relief can be granted. The Ist appellate court ultimately allowed the appeal with costs through out setting aside the judgment and decree of the trial court and decreed the suit by granting perpetual injunction restraining the defendant and her men from doing any act that would cause damage or weaken the suit common wall ABCDE in any manner. The defendant is restrained from doing any act of chistling of the common wall or raising any structures on the top of the common wall without the consent of the plaintiff. The defendant being aggrieved by the judgment and decree dated 08-7-1993 of the Ist appellate court to the extent of raising pillars to a depth of 5 to 6 inches into the common wall preferred this appeal challenging its validity and legality. At the time of admission, the grounds of appeal were perused and the appeal was admitted on the basis of the grounds raised in the appeal. Therefore the following are the points for consideration before this Court: 1. At the time of admission, the grounds of appeal were perused and the appeal was admitted on the basis of the grounds raised in the appeal. Therefore the following are the points for consideration before this Court: 1. Whether the Ist appellate court committed error in reversing the judgment of the trial Court on the ground that the appellant did not obtain the consent of the respondent— plaintiff for changing the roof and whether there is any Necessary for the consent of the tenant in common over ABCDE wall for the purpose or alteration or renovation of the house of the other party? 2. Whether an injunction can be granted against the co-owner with regard to the use of the common property? POINT The disputed wall covered by ABCDE is admittedly a common wall. It belongs equally to both parties as tenants in common. It is not the case of the defendant that he is entitled to one half of the wall exclusively and the plaintiff to the other half. There is no proposal by the defendant for demolition of the common wall or part of it or to scrape the entire wall. The evidence of P.W.1 who is the husband of the plaintiff, reveals that the common wall is 37 ft. in length and the same was constructed with raw (un-burnt) bricks and mud mortar. P.W.1 concedes that the wall was cut to a depth of 6 inches only at three places of the wall and the owners of the adjacent houses have also changed the roofs of their houses. P.W.1, however, did not specify as to what is the obstruction that is likely to be caused and how the construction of the pillars and the leying of the roof on the pillars would be an act detrimental to the enjoyment of his house. This chistling at A,B,C portions of the wall is to an extent of 10 to 12 inches to raise pillars to a depth of 9 inches at those three points. If there is a proposal for replacing the wall, there can be every apprehension for the plaintiff that the roof of their house is likely to be affected. The roof of both of the houses is resting on the common wall. If there is a proposal for replacing the wall, there can be every apprehension for the plaintiff that the roof of their house is likely to be affected. The roof of both of the houses is resting on the common wall. The defendant wants to raise the pillars at three points chistling the wall to a depth of 6 inches and rest the weight of the roof on those pillars. In such a case, the weight of the roof on the common wall will be reduced to half. There is no proposal by the defendant to interfere with the wall in any other manner except chistling the same at three places to a depth of 6 inches and width of 12 inches. The defendant is categorically assuring that immediately after raising those pillars, the small gaps. If any, remain at the scrapped portions of the wall will be plastered with cement and the wall will be brought to its normal position in all other respects. The observation of the Ist appellate court that raising of the concrete pillars abutting the wall would weaken the common wall is not on the basis of any scientific assessment and on practical lines. It is the common knowledge that whenever concrete pillars are raised abutting a wall, they would strengthen the old wall. The Ist appellate court in para 13 of its judgment observed that had the defendant tried to put the slab on the common wall, it would have been a reasonable use. The findings given by the Ist appellate court, unmindful of the scientific development in the construction technology needs to be tested, in the light of the circumstances of the case. A concrete slab to be laid on the common wall would rest on it and it would add more weight to the wall. If an R.C.C. slab is laid on the concrete pillars, the weight of the slab rests on the pillars and the common wall remains as a screen wall. Due to development of construction technology, many multistored buildings are being raised on 9” x 14” columns by providing 4” thick screen walls. Due to development of construction technology, the traditional concept of party-wall is fading out. Framed structures are replacing basements columns are replacing load bearing walls. R.C.C. slabs are replacing Madras terraced screen walls are replacing party-walls. Due to development of construction technology, many multistored buildings are being raised on 9” x 14” columns by providing 4” thick screen walls. Due to development of construction technology, the traditional concept of party-wall is fading out. Framed structures are replacing basements columns are replacing load bearing walls. R.C.C. slabs are replacing Madras terraced screen walls are replacing party-walls. The majority of law on this subject relating to part-wall was laid down when the roofs of the houses were completely resting on party-walls constructed with mud or lime mortar. Therefore alternation or major interference with such walls was discouraged. Nowadays, people are going tor 2" thick iron concrete screen walls for 4" thick brick cement mortor wails to separate the houses of others, lf both parties decide to have RCC roofs on columns they are coming to an under-standing to remove old party-walls and raise 4"’ or 9" screen walls with more strength and to save some space by both parties. The width of the suit wall is 14 inches. The chistling of the wall at points A, B. C is not creating any hole into the portion of the plaintiff and even after chistling the wall up to 6 inches, the depth of the wall upto 8" would still remain at A,B,C portions of the wall. The apprehension of the plaintiff that the wall is likely to be weakened due to raising of the pillars is not supported by any evidence. The authorities of the Municipal Corporation have accorded sanction for raising the pillars mid laying the slab. The evidence of D.Ws.2 and 3 who are the owners of the neighbouring houses reveal that when they raised similar constructions no damage was caused to the party walls of the respective portions. P.W.1 also admitted in his evidence that some adjacent house owners have also changed the roots raising pillars over The party-walls. The trial court, after examining the legal position and the evidence adduced by both parties, came to a conclusion That no consent is necessary from the co-owner to make reasonable use of the party-wall without causing injury to it. In the light of the observations of the trial court, it may be desirable to examine the legal position on this aspect and to test the validity of the observations made by the Ist appellate court. In the light of the observations of the trial court, it may be desirable to examine the legal position on this aspect and to test the validity of the observations made by the Ist appellate court. The following are the decisions brought to the notice of this Court on behalf of the plaintiff. In GANPAT RAO & ORS. v SAIN DAS & ORS(2)a Division Bench of Lahore High Court held: A mandatory injunction can be granted in case where one of the two tenants-in- common of a wall two adjoining houses excludes the other from the use of it by placing an obstruction on it. The only remedy of the excluded tenant is to remove the obstruction as the common wail cannot be treated as divided longitrudinally into two strips, one belonging to each of the neighbouring owners. Both the owners are entitled to use the whole width, subject to similar right of each other. In the said case. the defendants had raised the height of the wall with a view to build a superstructure on their tenement, but they had done it without the permission of the plaintiffs. Their Lordships have quoted with approval the leading authority on point in WATSON v. GRAY (3) wherein it laid down the rule that if one of the two tenants-in common of a wall between two adjoining houses excludes the other from the use of it by placing an obstruction on it the only remedy of the excluded tenant is to remove the obstruction. I he said rule has been followed by the High Courts in India. It was contended before their Lordships that the defendants have not occupied the whole of the width of the top of the common wall but have confined themselves to that moiety of the wall which is on the side of their own house and left the other moiety’ to the plaintiffs and the latter have not raised any complaint. This argument had not found favour with their Lordships. This argument had not found favour with their Lordships. Their Lordships observed that the case before their Lordships was a case of the party wail on which the two adjoining owners are to use the phraseology of the English law tenants-in-common and the wail cannot be treated as a wall divided longitudinally into two strips one belonging to each of the neighbouring owners and the plaintiffs are therefore entitled to use the whole width of the top of the wall subject to a similar right to the defendant and the construction of the new wall on half the width amounts to a ouster insofar as the width occupied by the defendants is concerned. in BALVANT YADNESHWAR v. SRINIVAS APPAJI KULKARNI(4) a learned Judge of the Mysore High Court following GANPAT RAO (I supra) and other rulings, held: The ordinary meaning and legally accepted notion of the term ‘party-wall’ is that it is a wall in between the properties of two adjoining owners and that these owners are tenants in common in respect of that wall. A party-wall much like any other tenancy on common has to be used by the co-tenants for the common benefit or for convenience of both the compensation-tenants. At the same time, neither of the two compensation-tenants is entitled to do any act which is likely to interfere with the enjoyment of the wall by the other. If the height of a party wall is raised by putting some more construction on it or is lowered by removing a part of it, it is no longer the same wall as before. It is considered that the right of making use of the top of the wall by the parties or any of them is taken away by the said act. It is considered to be an exclusion of one party by the other from the use of the wall as before. The judgment rendered by a learned Judge of Rajasthan High Court in ROOPCHAND V. PUNAMCHAND (5) is also on similar lines. The above decisions were rendered when one of the two tenants in common raised the height of the wall without the consent of the other, which puts more weight on the existing wall and obstructs the other party to enjoy the wall with equal rights. The above decisions were rendered when one of the two tenants in common raised the height of the wall without the consent of the other, which puts more weight on the existing wall and obstructs the other party to enjoy the wall with equal rights. But in the case on hand, the defendant is not proposing to raise the common wall and he wants to rest the slab on the common wall by keeping the weight of the roof on the pillars proposed to be raised at points A, B. C. Therefore. the above decisions have no direct application to the facts of the case on hand. In BAHOREY DINA NATH v. INDRAMANI JATIA & ANR(6) a learned Judge of the Allahabad High Court following the decision in GANPAT RAO ( I supra) held: Where a wall in a common wall of the parties in which they are compensation owners, it is necessary that the entire wall should be keptin such a condition that it may continue to remain joint and should be enjoyed in common by the parties. It would not be open to any party to do any act which may damage or endanger the common wall or alter or change its shape in such a way that it may cause to continue as common wall. In C.S.RAMACHANDRA RAO V. P.CHINNASWAMY KANDAR & ANR (7) a learned Judge of the Madras High Court held: In the case of a common party wall each co-owner is entitled to a reasonable user of the wall owned in common and so long as each co-owner used it reasonably without interfering with the enjoyment of the wall by the other co-owner or without doing anything which would weaken damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes. The other co-owner wall have no cause for complaint unless the acts alleged amount to his ouster or to destruction of the party wall. It is salutary rule to follow that owners of party wall who are desirous of adding to or otherwise materially interfere with the common property, should obtain the consent of the others property should obtain the consent of the other interested in it to the change being effected. It is salutary rule to follow that owners of party wall who are desirous of adding to or otherwise materially interfere with the common property, should obtain the consent of the others property should obtain the consent of the other interested in it to the change being effected. If the consent is unreasonably with held it wall be open to the party proposing to put up the construction to seek relief by way of injunction from the Court as withholding consent to any reasonable user will itself amount to ouster. In the case on hand, the defendant is pleading that when she sought plaintiffs consent for raising me pillars and RCC roof she did not agree for the same. The defendant proposed to raise the pillars at A, B. C points by making gaps of 10" x’6" in the common wall for the purpose of raising The pillars by raising pan of the pillar in the defendant’s portion to rest the R CC slab on them. Though the defendant undertakes to plaster those gaps of the wall with cement mortar, the plaintiff is not agreeable for the same. Raising the pillars does not amount to interfering with the enjoyment of the wall by the other co-owner and it does not in any way weaken damage, increase or diminish the wail enjoyed in common and the defendant can use it reasonably without interfering with the enjoyment of the wall by the plaintiff. In the case on hand. the facts are in no way indicating that the acts of the defendant are contrary’ to the principles laid down by the Court in the above judgment. In K.KONDAIAH V. B.V.CHALAMAIAH (8) a Division Bench of this Court held that it is an established rule of law that one of the co-owners can always use the common property, whether it is wall or a land in such reasonable manner so as to not cause any injury to the common property or ouster of the rights of the other co-owner. A learned Judge of this Court in D.K.MURTHY & ANR., V. V.VENKA-TESHCHETTI (9) took similar view, which reads: “Each co-owner can reasonably use it as not to interfere with the enjoyment of the wall by the other that he must not do anything which will damage or weaken that wall that its user should not amount to an ouster destruction of the wall” It is held that with these limits reasonable user of such a wall is permissible as otherwise co-owner may never consent to reasonable use being allowed by the other co-owner and that way deny him even reasonable use thereof though he is equally an owner thereof with the co-owner. His Lordship further held “if one co-owner builds a new wall on the top of the party wall, either with the consent or with the acquiescence of the other co-owner the raised portion of the wall assumes the same character as the original party wall, and if one co-owner raised the wall without the consent or acquiescence of the other co-owner he makes liable to an action for an injunction”. In the case covered by the above decision, one co-owner laid slab in the common wall by inserting it on one side of the wall and plastered the same. On those facts, the learned Judge held that the consent of the other co-owner is not necessary. The trend of the above decisions is clearly indicating that so long as the action of the defendant do not cause any obstruction to the enjoyment of the party wall by the plaintiff or doing anything which will not cause weakening of the wall, damage, increase or diminish the wall enjoyed in common the defendant can enjoy the common wall in such a reasonable manner without leading to the ouster of the rights of the plaintiff. The judgments of various High Courts are laying stress on one point that if a party wall is disturbed to a major extent, it is likely to endanger the structure of the house and pose danger to the inmates of the house. In order to provide safety to the inmates of the house and to protect the structure the Courts repeatedly observed that the co-owner has no right to do any act to interfere with others reasonable use of the wall. In order to provide safety to the inmates of the house and to protect the structure the Courts repeatedly observed that the co-owner has no right to do any act to interfere with others reasonable use of the wall. The Courts further held that if he construction proposed to be made by a owner altering the common wall causes any obstruction or interference with the enjoyment of the co-owner or causes any injury to the person or property of the co-owner or cause any injury to the person or property of the co-owner or weakens or damages the party wall, such party can be restrained from resorting to such acts and injunction be granted in such cases. The Ist appellate court also observed that the defendant is entitled to use the wall reasonably so as to not to interfere with the enjoyment of the wall by the other and without doing anything that will damage or weaken the wall. The Ist appellate court further observed that the defendant can always put up slab on the wall by inserting it on one side and that portion of the relief to the plaintiff cannot be granted. The Ist appellate court probably did not notice that the common wall was constructed with raw bricks and mud mortar. Without noticing the said fact the Ist appellate court observed that the defendant has caused damage to the wall at points A,B,C. The Advocate Commissioner on local inspection did not notice Commissioner on local inspection did not notice any damage to wall on account of the chistling of the wall to an area of 6” X 10” at three points viz., A,B,C. In the entire length of the wall of 37ft. there is a gap of 10ft. between the points A,B,C. The Ist appellate court further observed that the defendant is proposing to raise the Ist floor also. Therefore, she is not entitled to raise the Ist floor on the common wall without the consent of the plaintiff and the defendant ought to have raised pillars inside the portion of her house without chistling the common wall. Trying to put up RCC slab on the existing wall without raising pillars in the manner she did would have been definitely a reasonable use. Trying to put up RCC slab on the existing wall without raising pillars in the manner she did would have been definitely a reasonable use. The Ist appellate court also observed that the RCC pillars would never add any strength to the common wall and the wall is likely to develop cracks on the other side of the pillars. If the common wall is so weak, it. would have developed cracks at the time of chistling the wall at points A, B, C. but that is not the situation in this case. Had the plaintiff not restrained the defendant from raising the pillars, they would have been raised covering the chistling portions and restoring the wall to its normalcy by plastering the small gaps, if any. with cement mortar. Unless the defendant raises those pillars, it may not be possible to rest the slab at the outer edge of the pillars. The defendant is not proposing to raise the height of the common wall. He is not interfering with the wall in any manner to cause any obstruction for the common enjoyment of the wall by the plaintiff Since the defendant is entitled to lay his slab to half the width of the wall, the pillars are necessary to bear the weight of the roof. I am therefore of the view that the paty wall may not weaken or damage by raising the pillars as proposed by the defendant, and they are not going to cause any kind of obstruction for the common enjoyment the party wall by both parties. In the event of the defendant proposing to construct the Ist floor the slab of the Ist floor may also be extended parallel to the outer edge of the RCC roof proposed to be laid on the common wall but the defendant is not entitled to raise any portion of the wall of the Ist floor on the party-wall without obtaining the consent of the plaintiff. If the defendant is unable to gel the consent of the plaintiff for raising the wall of the 1st floor on the common wall she shall construct a screen wall to her 1st floor in her portion adjacent to the common wall without extending any portion of the said screen wall on the party wall. If the defendant is unable to gel the consent of the plaintiff for raising the wall of the 1st floor on the common wall she shall construct a screen wall to her 1st floor in her portion adjacent to the common wall without extending any portion of the said screen wall on the party wall. To sum up, I should say that the defendant is proposing to raise pillars by chistling the party wall with measurements 10" x 6" at points A, B and C and cover the gaps with columns and plastering without resulting to any damage to the party wall. Raising of the columns to that much extent in the party wall without raising the height of the common wall does not amount to causing any obstruction for the common enjoyment of the wall by the plaintiff and it amounts to a reasonable use of the party wall by the defendant. Resting of the RCC slab by the defendant at half the width of the party wall, as rightly observed by the Ist Appellate Court amounts to reasonable use of the party wall. If the defendant is not allowed to raise the pillars as proposed, it would amount to depriving her to put the party wall to reasonable use and becomes the exclusive wall of the plaintiff in course of time. The object of The development of law is to preserve the strength of the party wall without resulting in any kind of damage to the roofs of both the houses. There is no meaning in the observation made by the 1st appellate court that the columns raised with cement mortar would weaken the party wall. On the other hand they lend support to the party wall to remain in fact for some more years. Since the raising of the pillars (columns) by the defendant will not cause any obstruction for the common enjoyment of the wall by the plaintiff, weakness or damage to the party wall. the plaintiff is not justified in approaching the Court and seeking the relief of injunction preventing the defendant from making the reasonable use of the party wall. Since the raising of the pillars (columns) by the defendant will not cause any obstruction for the common enjoyment of the wall by the plaintiff, weakness or damage to the party wall. the plaintiff is not justified in approaching the Court and seeking the relief of injunction preventing the defendant from making the reasonable use of the party wall. Since the findings of the 1st appellate court are not in accordance with the principles laid down by various courts with regard to raising of the pillars as proposed by the defendant, I am inclined to interfere with the judgment of the 1st appellate court. In the result the appeal is allowed. The permanent injunction granted by the Ist appellate court in favour of the plaintiff, preventing the defendant from raising the pillars as proposed, is set aside and the judgment and decree dated 21-12-1988 passed by the trial court, in O.S.No.339 of 1983 is confirmed. The temporary injunction, if any, granted, pending disposal of the appeal, stands vacated. Each party to bear its own costs. -