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2009 DIGILAW 601 (MP)

Prasann Kumar Jain v. Basant Baman Rao

2009-05-05

A.K.SHRIVASTAVA, A.P.SHRIVASTAVA

body2009
ORDER 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. 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 has been prayed that the application for issuance of temporary injunction filed by the plaintiff be dismissed. 9. The plaintiff in support of his application for issuance of temporary injunction submitted his own affidavit and also submitted a photostat copy of the sale certificate dated 17.4.1956 and the defendant also submitted the photostat copies of the sale-deeds dated 1.4.1970 and 5.4.1972. 10. 9. The plaintiff in support of his application for issuance of temporary injunction submitted his own affidavit and also submitted a photostat copy of the sale certificate dated 17.4.1956 and the defendant also submitted the photostat copies of the sale-deeds dated 1.4.1970 and 5.4.1972. 10. The learned trial Court came to hold that the defendant is raising construction on the portion of his house only and he is not making any trespass on the party wall of plaintiff's share. The learned trial Court further found that as per the plaintiff's own saying the disputed party wall is hundred years old. The learned trial Court further held that the every person is having right to enjoy his property without causing any damage to the other and, therefore, if the defendant is restrained not to raise construction of his house, he will be debarred to enjoy his property and, therefore, it was directed to defendant that by taking all precautions, he should raise his construction so that the house of the plaintiff may not be damaged and if the same is damaged, either the defendant shall carryout necessary repairs or would pay compensation. The defendant was directed to give such an undertaking and on being submitted the undertaking of such a nature, the defendant was permitted to raise the construction. The defendant-petitioner accordingly submitted the undertaking in the trial Court on 16.11.2008. 11. The plaintiff filed an appeal before the learned First Apellate Court assailing the abovesaid order of the learned trial Court. The learned appellate Court allowed the appeal of the plaintiff and by setting aside the order of the learned trial Court allowed the application for issuance of temporary injunction of the plaintiff by restraining the defendant not to raise any construction in the disputed party wall and should maintain the status quo. 12. In this manner, this petition under Article 227 of the Constitution of India has been filed by the defendant. 13. The contention of Shri Jain, advocate for the petitioner is that the defendant is constructing and raising his portion of his house in such a manner so that the share/portion of the plaintiff in the disputed party wall may not be damaged and even if any damage is caused to the plaintiff, the defendant either get that portion of plaintiff repaired or may pay damages to the plaintiff. Further, it has been contended by him that the disputed party wall even after raising construction by the defendant towards his portion, it will remain as party wall and, therefore, the learned First Appellate Court illegally set aside the order passed by the learned trial Court by allowing the appeal of the plaintiff-respondent and allowed his application of temporary injunction. The learned counsel for the petitioner placed heavy reliance on Gulabchand v. Manikchand [ 1960 JLJ 419 ]. 14. Combating the aforesaid submission, Shri Vivek Khedkar, advocate for the respondent argued in support of the impugned order passed by the learned appellate Court and has contended that since admittedly the disputed wall is a party wall, therefore, the defendant is not having any right to cause any damage to it. In support of his contention the learned counsel for the plaintiff-respondent placed reliance on Ganesh v. Ramchandra [1979 JLJ 539]; Ramesh Chand v. Santoshilal [1997(II) MPWN 93]; Prem Chandra Gupta v. Dr. Kailashnarayan Sharma [ 1994(II) MPWN 163 ]; and Ramesh Chandra v. Kalika Prasad [1969(I) MPWN 200]. 15. Having heard the learned counsel for the parties, we are of the view that this petition deserves to be allowed. 16. This Court on 8.12.2008 in the presence of the learned counsel for the respondent passed the following interim order: "As an interim measure it is hereby directed that effect and operation of the order passed by the learned appellate Court shall remain in abeyance and the effect and operation of the order passed by the learned trial Court shall come into existence until further orders of this Court." Further on 16.12.2008, this Court directed as under: "It is directed that the petitioner may proceed with his construction but he will not cause any damage to the common wall owned by the respondent." In pursuance to these interim orders, it has been contended by the learned counsel for the petitioner that the construction is more or less complete. 17. On going through the impugned order of the learned First Appellate Court as well as on going through the order passed by learned trial Court and other material placed on record including the pleading of the parties as well as the Court sale certificate dated 17.4.1956, it is gathered that the disputed wall is a party wall. 18. 17. On going through the impugned order of the learned First Appellate Court as well as on going through the order passed by learned trial Court and other material placed on record including the pleading of the parties as well as the Court sale certificate dated 17.4.1956, it is gathered that the disputed wall is a party wall. 18. This Court Gulabchand's case (supra), in para 2 has held that law relating to rights in a party-wall is settled and may be stated thus: (1) each co-owner can reasonably use it, without interfering with the enjoyment of the wall by the other but he must not do anything which will damage or weaken the wall; (2) if a co-owner builds a new piece of 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; (3) if one co-owner raises the wall without any consent or acquiescence of the other co-owner, he makes himself liable to an action for an injunction; (4) where a party-wall is reconstructed by one co-owner at his exclusive expense it retains the original character of a party-wall and he cannot ask for an injunction to restrain the other coowner from claiming ownership on it. 19. Applying the aforesaid principle laid down in the aforesaid decision, in the present factual scenario since, in the present case also 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. 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 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. 20. 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. See, para 889 of Halsbury' s Laws of England, Fourth Edition Volume IV at page 393]. According to us, the given case in hand comes in the first category and the plaintiff and the defendant are the tenants in common in respect to the disputed party wall. 21. 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. [See, para 1 of Corpus Juris Secondum Volume 69, at page 2]. 22. According to some authorities, even though a party wall is sufficient to support existing structures and is not in dangerous condition, one of the adjoining owners may take it down and replace it with a wall sufficiently strong to support a new structure for which a stronger wall is required, if he replaced the wall within a reasonable time and exercises due care and avoid injury to the property of the other adjoining owner; as a general rule either owner may take down and replace a party wall which is in such condition as to be dangerous to life or property or insufficient to support existing structures, on giving reasonable notice to the other owner and exercising reasonable care in the operation. [See, para 16(b) of Corpus Juris Secundum Volume 69, at page 16]. 23. 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 plaintiff's 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 and the interference should be made only when the discretion has not been properly exercised or the application has been decided against the principles laid down to decide the temporary injunction application. Hence, the learned appellate Court has transversed beyond the powers conferred to it under Order XLIII rule 1 (r) of the Code of Civil Procedure. 24. Hence, the learned appellate Court has transversed beyond the powers conferred to it under Order XLIII rule 1 (r) of the Code of Civil Procedure. 24. The decision of Ganesh (supra), placed reliance by the learned counsel for the respondent, it is applicable in the present case because even if the defendant would raise construction in his share in the party wall, the entire disputed wall will remain common wall. Indeed in para 3 of the said decision, it has been held by this Court that whenever there is common wall belonging to the parties as co-owners, it has to be seen that the entire wall retains its character as a common wall and should always be kept in such a condition that it may continue to remain joint and accordingly may be available for enjoyment by both the parties. According to us, this decision is not against the petitioner because even if by raising construction to his share in the disputed party wall, the character of the said wall shall remain as a party wall. The decision of Rameshchandra (supra) and Premchand Gupta (supra), placed reliance by the leaned counsel for the respondent are distinguishable on the same proposition. 25. For the reasons stated hereinabove, this petition succeeds and is hereby allowed. The impugned order passed by the learned appellate Court is set aside and the order passed by the learned trial Court is hereby restored. 26. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs. The learned trial Court is hereby directed to decide the suit as early as possible preferably within a period of one year from today.