M. Natesan, J. - (1.) The Plaintiff, in a suit for injunction with reference to a partywall, is the Appellant in this second appeal. The only live issue for consideration in this second appeal is the Plaintiff's claim to rest rafters of the building, which he proposes to put up, on the said common wall. The Plaintiff is the owner of the property (now a vacant land) south of the common wall and the Defendants are the owners of the northern property. Originally, both the properties belonged to a common owner and in an earlier litigation between the parties, it was held that the wall is a common wall. In fact, it is an admission in the earlier proceedings by the present first Defendant that the Plaintiff could exercise his mamool rights in the wall. Of course, what those mamool rights were not defined. In the earlier litigation, the finding, which has become conclusive between the parties, is, that the wall was held in co -ownership. That matter came up to this Court in Second Appeal No. 2415 of 1948. The complaint then was the putting up of two windows in the wall by the present Defendants. Then this Court observed that, on the finding of the Courts below which had become final, both the Plaintiff and the Defendants held the wall in co -ownership, and one co -owner was not entitled to alter the nature of the wall without the consent of the other co -owner, following the observations in Kanahayya v/s. Narasimhulu, I.L.R. (1895) Mad. 38.
(2.) The Plaintiff in this case has not yet got ready plans of his proposed building. There is no clear evidence as to the nature or character of the structure he is going to put up and the extent of the support for the new building he required from the common wall. In fact, there is evidence that the Plaintiff was constructing a wall close to the common wall AB. The trial Court observed that the Plaintiff was not entitled to place any rafter on the common wall affecting the right of the Defendants. The contention before that Court was that the Plaintiff should not be allowed to rest his rafter on the common wall so as to jeopardise the Defendants using the common wall. The lower appellate Court has observed that as the Plaintiff is raising a wall by the side of the common wall, he can rest the rafters or beams or anything he wants on this wall of his. It is expressed by the lower appellate Court that it was very doubtful whether the common wall would stand the weight of the new building, which the Plaintiff proposes to erect on his vacant site.
(3.) Mr. V. C. Veeraraghavan, learned Counsel appearing for the Plaintiff Appellant, submits that the wall had been held in co -ownership that is in joint proprietorship and that so long as there was no detriment or damage to the wall, or to the Defendants' enjoyment of the wall, as they are entitled to, he could rest his rafters on the common wall. It is further submitted that the Courts below erred in denying all relief and in a way preventing the exercise by the Plaintiff of such rights as he had in the common wall. It is pointed out that the rejection of the claim for injunction may be construed as a denial of the Plaintiff's rights in the common wall.;