T.R. Krishnan v. T.V. Ramaswami

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936** ## **RSA.No. 503 of 2012 ()** **----------------------................** **AS.NO.16/2005 OF I ADDL.DISTRICT COURT, THRISSUR** ## **OS.NO.1247/2003 OF III ADDL.MUNSIFF COURT, THRISSUR** **----------------** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **-----------------------------------------------------------** **T.R.KRISHNAN, AGED 74 YEARS, S/O. S.V.V.RAMASWAMI IYER, PUTHAN NADAKKAVIL, THRISSUR VILLAGE AND TALUK.** **BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA** ## **RESPONDENT/APPELLANT/DEFENDANT:** **--------------------------------------------------------------** **T.V.RAMASWAMI, AGED 48 YEARS, S/O. LAGTE T.R.VENKITESWARAN, PUTHAN NADAKKAVIL, THRISSUR VILLAGE AND TALUK. PIN-680 020** **BY SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE ADV. SMT.MEENA.A.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **P.BHAVADASAN, J. ------------------------------------------------Regular Second Appeal No.503 OF 2012 ------------------------------------------------Dated this the 18[th] day of August, 2014.** ## **J U D G M E N T** Aggrieved by the reversal of the decree of the trial court by the lower appellate court, the plaintiff in O.S.No.1247/2003 before the III Additional Munsiff Court, Thrissur has come up in appeal. 2. The plaintiff is the owner of plaint A schedule property and defendant is the owner of plaint B schedule property. Both are tracing title to their respective properties as per Ext.A1 partition deed dated 30.09.1962. The short grievance of the plaintiff was that the defendant, in violation of the Building Rules and without obtaining sanction from the plaintiff, constructed a truss work on the western side on top of the common compound wall belonging to the parties and according to the plaintiff, the defendant is not entitled to do so. Claiming that unauthorized construction was bound to be removed by the defendant, suit was laid. **R.S.A No.503/2012** **2** 3. The defendant resisted the suit. It is pointed out by him that the roof of the shop room of the defendant was leaking during the rainy season and in order to prevent the same, truss work has been done by him. According to him, for avoiding damage and nuisance to public, the said act was done. It is claimed that the work so done was exclusively in the property owned and possessed by the defendant. Contending that no unauthorized construction had been done by him, the defendant prayed for dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court and the parties went to trial. The evidence consists of the testimony of PWs 1 to 3 and the documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant had Ext.B1 marked. Ext.C1 is the commission report. 5. The trial court, on appreciation of evidence in the case, came to the conclusion that the defendant had no authority to put up construction of the nature made mention of by the Commissioner in his report and being an unauthorized construction and as it has affected the right of the plaintiff, the **R.S.A No.503/2012** **3** defendant is bound to remove such construction. 6. Aggrieved defendant carried the matter in appeal as A.S.No.16/2005 before the 1[st] Additional District Court, Thrissur. The lower appellate court mainly guided by the fact that the local authority has granted permission for construction and therefore construction could be treated as authorised, reversed the finding of the trial court and dismissed the suit. Hence this R.S.A. 7. At the time of admission of the R.S.A, the following substantial questions of law were formulated. - i. Have not the lower appellate court erred in failing to adopt the principles of preponderance of probabilities, even while erroneously disbelieving PWs 1 and 2, to conclude that the wall was constructed within 'A' schedule, particularly when DW1 could not offer any plausible or tenable explanation for reduction in extent of 'A' schedule? - ii. Was not the lower appellate court bound to issue a mandatory injunction for removal of structures put upon 'A' schedule, even assuring that the wall was common? **R.S.A No.503/2012** **4** iii. Has not the defendant committed an infringement on the right of the plaintiff to have a common wall free of any additional structures effecting its strength and stability? 8. Learned counsel appearing for the appellant contended that the lower appellate court has grievously erred in law and on facts in reversing the decree of the trial court. Merely because the Corporation concerned has authorized the construction, that does not mean that the defendant can put up construction infringing the right of the plaintiff. What at best the defendant could have done was to put up construction in his own property and not to put up construction trespassing into the area owned and possessed by the plaintiff. The trial court has considered this aspect in detail and had come to the conclusion that the construction was not an authorized one and it had to be removed. Learned counsel pointed out that when there is a common compound wall, it is an admitted fact that one of the co-owners cannot put up structures on the common compound wall and cannot claim exclusive right to use the common wall to the detriment of the other co-owner. **R.S.A No.503/2012** **5** 9. For the above proposition, learned counsel for the appellant relied on a passage from B.B.Katiyar's Law of Easements & Licences, 13[th] Edition, Page 793 and the decision in _**Ambujakshi Amma** vs._ _**Gopi**_ (1990 (1) KLT 184). Following the principles laid down in the decision, learned counsel went on to contend that the defendant was bound to remove the unauthorized construction. 10. Learned counsel appearing for the respondentdefendant, on the other hand, contended that so long as the unauthorized construction does not cause any damage or nuisance to the public, the plaintiff can have no cause of action. All that the defendant has done is to protect the shop room and to prevent flow of water during rainy season and that cannot constitute unauthorized construction. At any rate, learned counsel went on to point out that at best the defendant could have been asked to remove that portion of the construction which protrude into the area which belonged to the plaintiff. Contending that no grounds are made out to interfere with the judgment and decree of the lower appellate court, he prayed for **R.S.A No.503/2012** **6** dismissal of the appeal. 11. In B.B.Katiyar's Law of Easements & Licences, 13[th] Edition, Page 793, it was observed as follows: “27. Party-wall.- A co-owner of a party-wall is not entitled to make any additions or alterations to the party-wall without the consent of the other coowner. Therefore, a co-owner may raise an objection to the raising of the party-wall by the other co-owner without his consent, and proof of damage is not necessary in order to sustain an action for removal of the raised portion of the party-wall. But if a co-owner raises a party-wall with the consent or acquiescence of the other co-owner, the raised portion of the party-wall assumes the same character as the old party-wall on which it stands. Any raising of the party-wall without the consent of the adjoining co-owner constitutes a trespass........... A co-owner cannot scrape or otherwise damage the party-wall. In case he does so, the adjoining coowner is entitled to claim that the wall be put in its original condition; but he cannot get a decree for cash payment. The owners of a joint wall are tenants-incommon and none of them can increase its height or build upon it unless he secures the consent of the other co-tenants. In the case of a common wall, coowner is entitled to a reasonable user of the wall **R.S.A No.503/2012** **7** owned in common and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes and the other co-owners will have no cause for complaint unless the acts alleged amount to his ouster or to the destruction of the party-wall. The opening of the apertures in the common wall by the co-owner should, therefore, be treated as incidental to the enjoyment of the common property and it does not amount to trespass upon the right of the other coowner which would entitle him to prevent such trespass by physical obstruction or by an action in a Court of law. When there is no scope for such an action, a co-owner cannot be deemed to have acquired a right of easement by prescription to ancient light and air through those apertures. In the case of a party-wall belonging to two persons, there can be no right of easement. In case one co-owner of a party-wall makes an unauthorized user of the same, the other co-owner may become entitled to make a like use of it”. ## 12. In the decision in _**Ambujakshi Amma** vs._ _**Gopi**_ (1990 ## (1) KLT 184), it was held as follows: “In the case of a common wall each party is **R.S.A No.503/2012** **8** entitled to act as the owner and one of them cannot compel the other to relinquish his right. A co-owner cannot legally assert exclusive right over the common wall to the detriment of the other. He cannot place any greater burden unilaterally or encroach or infringe upon the other owner's right in the wall. Without the consent of the joint owner one of the owners cannot meddle with the wall by raising its height or reducing it or in any way tampering with it to the detriment of the other. If one of the owners meddle with the wall the aggrieved party can sue for damages or seek restitution of the wall in its original condition by mandatory injunction. If the height of the party wall is raised by one of the parties without the consent of the other the latter can remove the raised portion of the wall and in that case he will not be rendered liable for damages. It is always open to him to seek for mandatory injunction for the restoration of the wall in its original condition in case of demolition of the wall, whether partial or full. Thus, if the height of a party wall is raised or lowered with the consent of the joint owner the resultant wall assumes the same character as the original party wall. Position will be different when it is done without consent or acquiescence of the joint owner. The aggrieved co-owner can certainly approach the Court for mandatory injunction to restore the wall to its original condition”. **R.S.A No.503/2012** **9** 13. There is absolutely no dispute regarding the fact that common compound wall separates the properties of both the persons namely, plaintiff and defendant or in other words, they are co-owners as far as the compound wall is concerned. Going by the principles laid down in the above decision, the right of the co-owner, if any, to put up construction of such a compound wall is rather limited. Even though it would appear from the above facts that co-owner has no absolute right to put up construction, it could not be said that the entire portion has necessarily to be treated as unauthorized one. The mere fact that construction laid by the defendant was authorised by the local authority does not mean that the right of the plaintiff is in any way affected. It could not be said that by obtaining sanction from the local authority, the right enjoyed by the plaintiff can be infringed. The plaintiff's right as co-owner will remain in tact. The lower appellate court has not found that the construction made by the defendant does not protrude into the portion of the compound wall in the possession of the plaintiff. However, the trial court has ordered that pulling down of the entire construction made by **R.S.A No.503/2012** **10** the plaintiff is unauthorized one. 14. After having given anxious consideration to various aspects and also after having considered the pleadings and evidence on record, it is felt that the defendant needs to pull down only that portion of the construction which trespasses into the area over the compound wall to which the plaintiff is entitled to. Necessarily that had to be determined afresh. It may not be proper to direct the defendant to pull down the entire structures especially when it is not shown that any difficulty or nuisance is caused to the plaintiff if the construction be limited to that portion which belongs to the defendant. For the above reasons, this appeal is allowed, the judgment an decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law. The lower appellate court shall depute the same Commissioner who visited the property earlier to ascertain the extent of that portion of the unauthorized construction which protrudes into the portion of the compound wall which belongs to the plaintiff and pass appropriate orders in **R.S.A No.503/2012** **11** the light of what has been stated above. The parties shall appear before the lower appellate court on 17.09.2014. The lower appellate court may make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. There will be no order as to costs. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.