The second appeal is filed under Section 100 C.P.C. against the decree and judgment in A.S.No.222 of 2004 on the file of the Principal Sub Court, Nagercoil dated 22.08.2005 confirming the judgment and decree in O.S.No.7 of 2003 on the file of the Principal District Munsif Court, Nagercoil dated 29.10.2004.
2.The defendants are the appellants. The appeal is preferred against the decree and judgment of the learned Principle Judge, Nagercoil in O.S.No.7 of 2003. The respondents/plaintiffs have filed a suit for declaration that the plaintiffs 1 and 2 are having valid title over the possession of the plaint suit schedule wall along with the defendants 1 and 2 and for a permanent injunction restraining the defendants 1 and 2 from demolishing or changing the physical features of the suit wall and for a mandatory injunction directing the defendants to reconstruct the 15 ft. length and 5 ft. breath of the demolished suit wall.
3.The brief facts of the case is as follows:
The plaintiffs and the defendants are the permanent lessees of the suit property of the third defendant one Athimmamunivar Trust. The plaintiffs' property is in re-survey No.8/57 and the defendants 1 and 2 property is in re-survey No.8/58. There is a compound wall running in between the two suit survey numbers. The length of the compound wall is 115 ft. north-south. The plaintiff's stair-case is on the western side and other constructions of the plaintiffs' house are embedded over the suit wall. Likewise, the rafters, etc., and the construction are also embedded on the suit wall. Though the length is running 115 ft. the disputed portion is only in the middle of the suit wall.
4.According to the plaintiffs, the defendants 1 and 2 have demolished the disputed wall for a length of 25 feet and thereby exposing the stair-case, bathroom and other features of the plaintiffs' house and the portion of the roof of the plaintiffs.
5.According to the defendants, the old structures of their building were resting over the wall, which belonged to the defendants and they have obtained permission to demolish and re-construct the building. Therefore they have demolished their portion of the property and re-constructed a house. According to them, the plaintiffs have no right or title over the suit wall, which is exclusively belonging to the defendants and it is not a common wall but it is a party wall.
6.However, the trial court, based on the Commissioner's report and photographs and sketch filed by him found that the disputed wall is a common compound wall on which both the parties' constructions are resting and thereby granted the relief of declaration that the suit wall is a common wall belonging to both the parties and consequential injunction and also mandatory injunction directing the defendants to reconstruct the demolished portion.
7.Aggrieved by this, the defendants preferred an appeal in A.S.No.222 of 2004 before the Principal Sub Court, Nagercoil and the lower appellate court found that the suit wall is a common compound wall and directed the defendants to reconstruct the demolished portion. Failed in both the courts below, the defendants have preferred this second appeal on the following grounds:
a) that the lower Appellate Court has overlooked the characteristic features of a party wall and a common wall.
b) that the disputed wall is a party wall and they have an exclusive right over it.
c) the construction of staircase, etc., by the plaintiffs is only for deriving lateral support and it does not mean that the disputed wall is a common wall.
8.While admitting the second appeal,the following substantial questions of law were framed:
"(a)Whether the lower court was right in overlooking the characteristics features attending a party wall or common wall?
(b)Whether the lower court failed to note that the respondents have not taken any positive steps to employ the services of the Taluk Surveyor to prove the allegation that the disputed wall is situated in T.S.No.P8/57 and P8/58."
9.The learned counsel for the appellants would submit that the wall situated in the property is an exclusive wall on which an old house was constructed and the wall forms part of the eastern wall of the defendant's house. The learned counsel pointed out that even assuming that the plaintiffs have rested their stair-case or roof or fixed any other construction on the wall, it will not give any right for the plaintiff as the wall is only a party wall and not a common wall. The learned counsel contended that the Commissioner has not employed the Taluk Surveyor and the respondents have also not taken any steps to employee such service to prove the allegations that the wall is situated in both the survey numbers and that the plaintiffs have a right over the suit wall.
10.The learned counsel for the respondents would submit that the Advocate Commissioner has clearly found that the suit wall runs in both the survey numbers namely TS.No.8/57 and TS.No.8/58 and therefore, it is a common compound wall. The learned counsel further contended that the plaintiffs have embedded their stair-case, rested the roof and have constructed toilets and bathrooms and even embedded their electricity connection boards on the wall and thereby establishing their right and possession over the wall and therefore, the wall is a common wall for both the parties. The learned counsel pointed out that when the defendants have claimed an exclusive right over the wall, it is for them to prove the same, as the plaintiffs have already discharged their burden showing that the suit property is a common wall.
11.The simple point for consideration is whether the suit wall which runs in between the properties of the plaintiffs and the defendants is a party wall or a common wall. The salient features of a party wall are that-
a)it belongs to one of the party, but it is a joint wall in between the neighbours.
b)though the other party namely the neighbour is entitled to rest his roof or stair-case or to construct any other amenities attaching or embedding in the wall as a lateral support, he cannot claim an exclusive right in the wall as if it belongs to him.
c)The owner of the wall also cannot prevent or injunct the other party from using the wall as the right to lateral support is a right recognised in law as between owners of adjacent property. He cannot damage the above said constructions or any other features to remove such lateral support so as to impair or cause damage.
12.The owner of the party wall is estopped by the doctrine of acquiescence and he cannot object the other party's enjoyment over the party wall. In any event, the other party cannot claim common right or exclusive right except of his enjoyment.
13.Now let us see whether the disputed wall is a party wall or a common wall.
14.The plaintiffs have claimed that it is a common wall, which runs in both the suit property and they have embedded some of their construction over the wall. The prayer itself is to declare that the plaintiffs 1 and 2 are having valid title and possession over the plaint schedule suit wall along with the defendants 1 and 2. According to the Commissioner's report, the length of the wall is 115 ft. north-south. It is found by the commissioner that for a length of 46 . ft. from the north, the height of the wall is 5 ft. Thereafter, for another 5. ft. the height of the wall is 10 ft. and on this 10 ft. wall, the plaintiffs' first floor parapet wall i.e. the roof of the plaintiff is resting. For another length of 19 ft. the height of the wall is 10 ft., but in a demolished condition. However, the first floor of the plaintiff's house rest on this wall. For a further length of 19 ft. the wall was demolished exposing the stair cases of the plaintiffs' property and thereafter, for another 17 ft. the height of the wall is reduced to 5 ft. thereby exposing the plaintiffs' toilet and bathroom. The remaining length of the wall is 5 ft. height. So it is evident that the initial length for 46 . ft. the height of the wall is only 5 ft. and on the southern side for 7. ft. the height of the wall is also 5 ft. Therefore, out of 115 ft. about 54 ft. the feature of the wall is a compound wall and in the rest of the length, the height of the wall is 10 ft. on which the constructions are made for a lateral support.
15.The portion marked as ABCD of 8.321 cents is the plaintiffs' property and the portion DEFC of 6.446 cents is the defendants' property and the wall is exactly on the boundary line in the commissioner's plan. The wall seems to be in existence even prior to the purchase of the property by both the plaintiffs and the defendants. The sale deeds do not mention about the wall and the defendants have also not stated that they have constructed the above said wall. However, for a length of 55 ft. of the wall, the plaintiffs' construction are on the disputed wall and as stated earlier, they had been enjoying that lateral support and the defendants cannot now object to it as they are estopped by the doctrine of acquiescence.
16.The plaintiffs have already in enjoyment of almost more than half of length of the wall. The remaining portion is only in the frontage around 46 ft. which remains as compound wall on the height of 5 ft. Ex.A.1 is the sale deed for the survey No.8/57 in favour of the second plaintiff. Ex.B1 is the sale deed dated 11.04.1974 in favour of one Stella for the survey No.8/58. Ex.B1 is the earlier deed to Ex.A1 and in both the documents, a house property has been shown but there is no mention about the presence of a compound wall and to whom it belongs to. Both the properties are sold as vacant site and with a house.
17.In the absence of evidence by both the parties, it is very difficult to find out whether the suit wall is a party wall or a common compound wall. It has both the features. As stated earlier, from the north for an extent of 46 ft. it is compound wall and almost for the rest of the extent it is a party wall. However, the compound wall runs in both the properties and therefore, it has more features of a common compound wall rather than a party wall.
18.Moreover, the plaintiffs have initially discharged their burden by proving their enjoyment and possession over the wall. It is also fortified by the report of the commissioner. Therefore, I am of the considered view that it is a common wall belonging to both the parities. The points are decided accordingly. Both the courts below have correctly decided the issue and has decreed the suit and I have no reason to interfere with.
19.For the reasons stated above the Second Appeal fails and liable to be dismissed and dismissed accordingly.
nbj To
1.The Principal Sub Court, Nagercoil.
2.The Principal District Munsif Court, Nagercoil.