IKRAM ULLAH KHAN Vs. MUHAMMAD YUNIS ALI KHAN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff-respondent, in which he asked the Court for a perpetual injunction to restrain the defendant from interfering with his building a certain wall. The parties are owners of adjoining houses. The plaintiff wished to build an upper storey on the room which is marked (A) in the plan attached to the plaint. The defendant objected. Hence the suit. The plaintiff was desirous of building on the two walls running west and east and north and south which divide the two houses. There were other reliefs and other matters in the suit with which, however, we are not concerned on appeal. The question before me is whether or not the plaintiff is entitled to raise the party walls in dispute without interference on the part of the defendant. The Court of first instance dismissed the suit. The plaintiff appealed. His case was that the party walls belonged entirely to himself and that he had a right to build upon them. The lower Appellate Court found, as a matter of fact, that the party walls belonged to the plaintiff and the defendant jointly. To use the lower Court s own expression it found that they were joint owners of those party walls. THIS is a clear finding that the parties are tenants-in-common of the walls. The lower Appellate Court hold that the plaintiff would be entitled to build on that half of the wall which is towards his own house, and it, therefore, decreed the suit accordingly. The defendant has appealed. Two points are pressed, first of all that the question of the ownership of the wall is res judicata by reason of a previous decision and the second is that on the findings of fact arrived at by the Court below the plaintiff is still not entitled to build upon the party walls without the defendant s consent. In regard to the question res judicata there is no force in the plea, for the simple reason that the portion of the wall now in dispute between the parties was not in dispute, in the former litigation, and, therefore, the decision in the latter cannot operate as res judicata. But the defendant, in my opinion, is entitled to succeed on the second plea raised before me. The question of the right of one tenant-in-common of a party wall to build upon the wall or to interfere with it is one which is covered by decisions. The case of Watson v. Gray 14 Ch. D. 192 : 49 L.J. 243 : 42 L.T. 294 : 28 W.R. 438 : 44 J.P. 537 clearly lays down on principle that in such a case as this, one of the tenants-in-common is not entitled to interfere with the party wall without the consent of the other tenant-in-common. The same point was decided in the case of Kanakayya v. Narasimhulu 19 M. 38. In that case one of two tenants-in-common of a party wall raised the height of the wall with a view to raise a superstructure of the wall. The other tenant-in-com-mon, who had not consented to the alteration in the wall but had suffered no inconvenience therefrom, sued to enforce the removal of the newly erected portion. It was held that the plaintiff was entitled to the relief sought and the ruling in Watson v. Gray 14 Ch. D. 192 : 49 L.J. 243 : 42 L.T. 294 : 28 W.R. 438 : 44 J.P. 537 was followed, From the principle laid down in these decisions it is clear that the plaintiff is not entitled to build upon the party walls in suit without the consent of the defendant and that the lower Appellate Court was wrong in issuing an injunction to the latter to prevent him from interfering with the building of the superstructure which the plaintiff wished to raise on the party wall. The appeal is, therefore, allowed. The plaintiff has filed objections against the finding of the Court below that the walls belonged jointly to the parties in suit. The decision is on a question of fact and no error in law has been laid down before me to vitiate that decision. The objections are, therefore, disallowed with costs. The plaintiff s suit will stand dismissed with costs in all Courts. The original Court dismissed the suit in toto. The plaintiff in his appeal to the Court below only pressed the question of his right to build on the party wall.