The deductions from such decisions in relation to rights in a party or a joint wall, can well be summed up as under: - (1) Each co-owner can reasonably use it so as not to interfere with the enjoyment of the wall by the other; (2) that he must not do anything which will damage or weaken that wall, (3) that its user should not amount to an ouster or destruction of the wall. Within these limits reasonable user of such a wall is permissible as otherwise, co-owner may never consent to reasonable use being allowed by the other co-owner and that way, deny him even reasonable use thereof though he is equally an owner thereof with the co-owner. However, if one co-owner builds a new piece of wall on the top of the party-wall, either with the consent or with the acquiescence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall, and if one co-owner he makes himself liable to an action for an injunction. Thus, the rights of the parties in respect of the party wall or a joint wall between the two neighbouring houses would stand covered under the above said principles deduced from various decisions referred to here above. Since, there is no question of raising any party wall and as all that the defendant intended to do is to put up a slab in the wall by inserting the same by 4 inches on one side of the wall and then plastering the same so as to be placed in its proper condition, there is neither any question of ouster or the interference with the enjoyment of the said wall by the other side nor would it amount to waste or weakening of the wall so as to forbid the defendant from making reasonable use of such a joint of common wall of the parties,. No consent is therefore, essential to be taken by one from the other co-owner, in making such reasonable use of a joint or party-wall. Both the Court here blow were, therefore, perfectly right in refusing to grant an injunction as sought for against the defendant in the case.
. In order to claim any such right, it must be a right claimed and acquired against some other owner of a property, and there was none in the case a both the properties belonged to the same person viz., the father of the parties. We do not know as to how many yeas before the date of the suit the open space had come to be purchased by the father of the parties and at any rate all that the evidence shows is that both the properties were with the family of the parties since before 1946, and had remained to be the joint properly belonging to the family of the parties. The user thereof was also joint and in fact, as already said here above, there was a kitchen on the open space which was being used by all the persons living in the house. In a case f Marghabai v Motibhaai AIR 1932 Bom 513. It was held that
" a person cannot acquire an easement unless he acts with the acknowledge that it is a case of dominant and servient tenement and he is exercising a right over property which does not belong to him. It he enjoys a right under the supposition that he is an owner of property he does not acquire an easement".
Gujarat High Court
Sumanlal Bhagwandas Kapadia vs Naginlal Bhagwandas Kapadia on 2 December, 1965
Equivalent citations: AIR 1967 Guj 87, (1967) 0 GLR 386
Bench: N Shelat
