Judgment:
Sathasivam, J.
1. Defendants 2 to 5 in Order S. No. 637 of 1977 on the file of District Munsif, Karur, are the appellants in the second appeal. The respondent herein filed the suit Order S. No. 637 of 1977 before the said court for declaration of his right, title and interest over the suit property and for permanent injunction restraining the defendants from in any manner doing anything and raising construction and for mandatory injunction directing the defendants to remove the construction on the disputed property within the time fixed by the court.
2. The averments in the plaint are as follows: The vacant site of the suit 'A' schedule property originally belonged to one Chinnappa Konar, who is the father of defendants 1 and 2 and one Srinivasa Konar, who is the husband of the plaintiff. One Krishna Konar and his son have partitioned their joint family properties including the suit 'A' schedule property on 30.3.1938 under a registered partition deed. In the partition, the western half of the vacant site of 'A' schedule property was allotted to the said Srinivasa Konar and the eastern half of the vacant site of 'A' schedule property was allotted to the said Chinnappa Konar, who is father of defendants 1 and 2. Soon after the partition arrangement, the plaintiff's husband has built his house in the western portion which was allotted to him in the partition arrangement. Long after the construction of the house of the plaintiff's husband, the defendants 1 and 2 had put up constructions in the eastern portion allotted to their father in the partition arrangement. Even though the north to south wall standing between the western portion of the plaintiff's husband and the eastern portion of the defendant 1 and 2 in the suit 'A' schedule property which is marked as A B in the rough plan and shown as B schedule property in the description of the property in the plaint was constructed by the plaintiff's husband exclusively at his own cost, it is a common party wall. The plaintiff's husband Srinivasa Konar died on 19.9.1973 leaving behind him the plaintiff as his only heir. The plaintiff is residing in the western portion of the 'A' schedule property. Since the first defendant died during the pendency of the suit, his wife and children were added as defendants 3 to 5. The defendants have been remodelling their house on the eastern portion of the 'A' schedule property. During the absence of the plaintiff or about 22 days, the defendants have highhandedly raised the wall in the central portion marked as X, Y in the rough plan and have unlawfully put up a terrace on the raised portion of the wall. Further, they have raised the eastern half of A B wall on the northern portion to some height. The defendants are not entitled to put up any construction or to partition the abovesaid A B wall. A co-owner is entitled to enjoy every inch of the property to his best advantage. Hence she has filed the present suit.
3. The first defendant filed a written statement in the following manner: It is admitted by the first defendant that the vacant site of the suit 'A' schedule property originally belonged to one Chinnappa Konar, who is the father of defendants 1 and 2 and one Srinivasa Konar, who is alleged to be the husband of the plaintiff and one Krishna Konar, Srinivasa Konar and the sons of Krishna Konar have partitioned their joint family properties including the suit A schedule property on 20.3.1938 under a registered partition deed. He denied that in the partition deed, the western half of the vacant site of the A schedule property was allotted to the said Srinivasa Konar and the eastern half of the A schedule property was allotted to the said Chinna Konar, who is the father of defendants 1 and 2. The AB wall was put up by the defendant's family exclusively at their own cost. But, in view of the close relationship and cordiality which prevailed between the said Srinivasa Konar and the defendants' family, the defendants' family has generously allowed the said Srinivasa Konar to use the A B wall for the purpose of house construction. Therefore, it is neither an exclusive wall of the plaintiff nor the common wall of both the plaintiff and the defendants. The first defendant arranged for remodelling the house of the eastern portion of A schedule property in the year 1976. The plan for reconstruction has been submitted on 11.2.1976 and approved on 6.2.1977. Soon after the approval, the defendants have begun the construction and the plaintiff was aware of the stages of the construction right from the beginning. Therefore, it is false to state that the defendants had high-handedly raised the central portion of the A B wall marked X, Y in the plan and put up terraced house in her absence. On the northern side, the defendants have put up construction only on the eastern half of the A B wall to a considerable length. Therefore, even if the A B wall is a common party wall plaintiff cannot object as the defendants have put up construction only on this eastern half of the A B wall leaving the other in tact. Since the defendants had been using the triangular shaped wall right from 1946 exclusively the plaintiff cannot object to the use of this portion by raising the wall over the same for the purpose of reconstruction. Therefore, the plaintiff is not entitled to the declaration of title to the A B wall which is described as B scheduled property or to the relief of permanent injunction or mandatory injunction as prayed for. With these averments, the first defendant prayed for dismissal of the suit.
4. Defendants 2 to 5 adopted the written statement of the first defendant.
5. In support of the plaintiff's case, she was examined as P.W.1. She also marked Ex.A-1, dated 20.3.1938, registration copy of partition deed entered into among Chinnappa Konar and others, and Ex.A-2, dated 30.9.1977 plan filed along with the plaint. On behalf of the defendants, third defendant, namely, Seethai Ammal was examined as D.W.2 and one Sundara Konar was examined as D.W.1. They also marked Exs.B-1 to B-11 in support of their defence. Exs.C-1 to C-3 were marked as court Exhibits. The trial court, on the basis of the materials, has held that A B is a common party wall and the plaintiff is entitled for declaration of her title, right and interest to A B wall only as a common owner.
6. The grievance of the plaintiff is that the defendants 1 and 2 have newly put up reinforced concrete terrace hall to length of 24 feet in a portion where the tiled house was in existence by raising A B wall in this portion to the entire width to a height of 12' 7'. Her further grievance is that the defendants have raised the reinforced concrete pillar to the entire width of A B wall at a distance of 3' from point G and 8' 8' from the point Y, which is shown in blue ink colour in the Commissioner's plan, which is marked as Ex.C-3. The plaintiff has also deposed that due to the reconstruction made by the defendants, she was not able to use the A B wall as he has enjoyed before and the AB wall also has become weak and in due course, it may be damaged. Because of the above construction, the plaintiff is not in a position to use his share in the common wall. With this factual position, the trail court came to the conclusion that the plaintiff has sustained injury by way of construction on and over the common party wall in the portion which is marked X, F, E, Y and shown in blue ink colour and also in the portion wherein the pillar was built which is shown in blue ink colour in the plan which is marked as Ex.A-3. In view of this factual position, the trial court granted decree for mandatory injunction and permanent injunction as prayed for.
7. Against the judgment and decree of the learned District Munsif, Karur, the defendants 2 to 5 filed appeal in A.S. No. 14 of 1981 before the Sub Court, Karur. The lower appellate court has also accepted the finding of the trial court that A B wall is a common party wall and both the plaintiff and defendants are entitled to use without causing injury to others. The lower appellate court has also agreed with the finding that in the party wall wherein the portion X, Y, F, E under Ex.C-3 the entire party wall has been occupied by the construction of the defendants. Against the concurrent findings of the courts below, the unsuccessful defendants 2 to 5 filed the present second appeal before this Court.
8. The learned Counsel for the appellant contended that the plaintiff has not specifically pleaded ousting the right and enjoyment of the defendants. She also contended that the defendants have been re-model-ling their house on the eastern portion of 'A' schedule. The learned Counsel has also contended in the light of the specific pleadings in paras. 5 and 6 of the written statement that the conclusions of the courts below are incorrect and liable to be set aside. The learned Counsel also very much relied upon the evidence of the plaintiff as P.W. 1. She also contended that the report of the Commissioner shows that there was no damage to the plaintiff's property or any reconstruction on the plaintiff's enjoyment in the common party wall, hence the findings of the courts below are unsustainable.
9. On the other hand, the learned Counsel for the respondent took me to the various factual findings of the courts below to show that A B wall is a common party wall and contended that because of the construction of the defendants on the A B wall, the plaintiff has sustained injury. Apart from the findings of the courts below, the learned Counsel for the respondent relied upon:
(1) Kanakayya v. Narasimhulu I.L.R. 19 Mad. 38.
(2) M.P Philip v. Chinna Subba Iyer A.I.R. 1956 T. C. 57.
(3) Balwant Yadneshwar v. Srinivas Appaji A.I.R. 1959 Mys. 244.
(4) Bahorey Dina Nath v. Indramani : AIR1964All436 .
(5) Ramachandra Rao v. Chinnaswami Kandar (1967) 1 M.L.J. 316 : 86 L.W. 277.
10. In the decision reported in Kanakayya v. Narasimhulu, I.L.R. 19 Mad. 38, cited supra, the Division Bench of this Court has held that:
One of the tenants-in-common of a party-wall raised the height of the wall with a view to building a superstructure on his own tenement. The other tenants-in-common, who had not consented to the alteration in the wall, but had suffered no inconvenience therefrom, now sued to enforce the removal of the newly-erected portion - held, that the plaintiff was entitled to the relief sought.
11. In M.P. Philip v. Chinna Subba Iyer A.I.R. 1956 T. C. 57, it is observed that;
It is settled law that any one of such co - owners cannot build upon such a party wall so as to make exclusive use of the wall for himself, without the consent of the other co-owner. If any such unauthorised construction is attempted by one co-owner the other co-owner has the right to get such unauthorised construction removed.
The act of one co-owner in raising the height of the party wall built to his own convenience without the consent of the other co-owner will constitute trespass in the eye of law. The other party is entitled to a mandatory injunction so that the unauthorised construction over the wall is removed and the position of the wall is restored to the situation in which it existed prior to such unauthorised construction.
12. In Balvant Yadneshwar v. Srinivas Appaji A.I.R. 1959 Mys. 244, in identical circumstances it was held that:
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 tenant-in-common in respect of that wall. A party-wall, much like any other tenant-in-common has to be used by the co-tenants for the common benefit or for the convenience of both the co-tenants. At the same time, neither of the two co-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 one 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. It is on this basis that no party is entitled either to raise the wall or to without the consent of the other.
Hence, in the case of a party-wall, the increasing or lowering its height amounts not only to an interference with the right of use of the other, but it amounts to an exclusion. It is on this principle the party aggrieved is entitled by means of a mandatory injunction to have the wall brought back to the original position.
It is not necessary that the plaintiff need prove any particular injury or loss or damage caused to him. Hence the question of compensation does not arise. Thus the only remedy that is available to the plaintiff is a mandatory injunction. The possible exception to the grant of this relief would only be in cases where the plaintiff is guilty of laches, Watsib v. Gray (1880)14 Ch. D. 192, Foll, Case law considered.
13. In Bahorey Dina Nath v. Indramani : AIR1964All436 , it is observed that:
Where a wall is a common wall of the parties in which they are co-owners, it is necessary that the entire wall should be kept in 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 cease to continue as common wall. Joint enjoyment by the parties to whom a common wall belongs does not mean that they are owners of the said wall to the extent of a half share. Both parties own the wall jointly and they are entitled to such enjoyment of it as is not inconsistent with the right of the co-owners. One of the co-owners is not permitted to narrow the wall to half its width, though he may not have weakened it.
14. Finally in Ramachandra Rao v. Chinnaswami Kandar (1967) 1 M.L.J. 316 : 86 L.W. 277, it is pointed out that:
It is a salutory 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 interested in it, to the change being effected. If the consent is unreasonably withheld it will 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.
15. On the basis of the principles laid down by the above referred decisions, the concurrent findings of the courts below that disputed wall is a party common wall and the plaintiff is entitled to the relief of permanent injunction and also the relief of mandatory injunction cannot be said to be either improper or perverse. As a matter of fact, the evidence and the Commissioner's report and plan disclose that in the party-wall wherein lies the portion X, Y, F, E under Ex.C-3, the entire party-wall has been occupied by the construction of the defendants and the defendants have also put up number of pillars on the east of the party-wall over which only the construction rests. In these circumstances, I am in entire agreement with the findings of the courts below that raising of the party-wall to a considerable height by the defendants and wherein the entire party-wall has been occupied by the defendants would virtually prevent anyone from making use of the same for any other purpose. Hence the courts below are justified in granting the decree for declaration, permanent injunction as well as mandatory injunction in favour of the plaintiff. Consequently, I am unable to accept any of the arguments of the learned Counsel for the appellant, consequently, the second appeal fails and is dismissed. No order as to costs.