Madras High Court
M.Paramasivam vs I.Karuppaiah on 28 January, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date: 28/01/2011 Coram The Hon'ble Mr.Justice R.S.RAMANATHAN Second Appeal(MD)No.510 of 2006 1. M.Paramasivam 2. P.Nithyakalyani ... Appellants vs. 1. I.Karuppaiah 2. S.Maleswari 3. G.Annamalai ... Respondents !For appellants ... Mr.K.Periasamy ^For R1 ... Mr.V.K.Vijayaraghavan Prayer Second Appeal against the judgment and decree dated 27.2.2006 made in A.S.No.54 of 2005 on the file of the Principal Sub Court, Madurai against the judgment and decree dated 25.1.2005 made in O.S.No.790 of 2002 on the file of the Additional District Munsif Court, Madurai Town. :JUDGMENT
The plaintiffs, who were successful in the Trial Court and unsuccessful in the first appellate court, are the appellants.
2. The appellants filed the suit for mandatory injunction for removing the asbestos rafters placed by the first respondent in the common wall XY as per the rough sketch and marked as Ex.A1 and to close the windows and door in the common wall XY, for permanent injunction restraining the respondents from interfering with the right of the appellants to have the sewage water through the passage marked as RS in Ex.A1, and also for permanent injunction restraining the second respondent from placing any stones or gunny bags in the common pathway shown as KLMN in Ex.A1 and for damages.
3. The case of the appellants was that the suit schedule properties which are a row of houses belonged originally to Soundaravalli and Vasanthakokilam. There are seven houses in the building and each of them were given door numbers as 39A, A1, B, C, D, E and F. The first appellant purchased the portion C from the owners through the power agent on 9.7.2001 and the second appellant purchased the portion D on the same date from the power agent of the owners. The portion D is on the eastern side of the portion C. The first respondent purchased the portions A and A1 from the same owners on 4.7.2001 and the first respondent also purchased the first floor of portion B. The walls which divide the houses are common walls belonging to the adjacent owners and the wall that divides the portion B and C in the ground floor is the common wall and similarly the wall which divides the upstair portion of B and C is also a common wall and shown as XY in the rough plan Ex.A1. The original owner, while constructing the upstairs in the B portion, opened door way in the common wall XY opening into the terrace portion of C purchased by the first appellant and also placed two windows in the common wall facing the open terrace belonging to the first appellant. The asbestos roof that covered the upstairs portion of B was also protruding towards east over the terrace portion of C belonging to the first appellant and therefore, after the purchase of the portion C, the first appellant requested the first respondent to close the doorway and the windows in the common wall XY in the first floor and that was not accepted by the first respondent. Further, all the portions were letting out their sewage water through underground pipes which passes through the lane situate on the south of all the portions and that passage was shown as RS in the rough sketch Ex.A1 and the first respondent who purchased the portions A and A1 attempted to prevent the appellants from taking their sewage water through the underground pipes through the passage RS and also they tried to place stones and gunny bags in the front portion and therefore, the suit was filed for mandatory injunction, for permanent injunction and for damages.
4. Respondents 1 and 2 contested the suit that XY wall is not a common wall and it belongs to the first respondent absolutely and the doors and windows are there even prior to the purchase of C portion by the first appellant and therefore, the first appellant cannot demand the closure of that doorway and windows and though the first respondent is entitled to prevent the flow of sewage water from the portion of the appellant, the first respondent has not prevented the same and the first respondent never prevented the enjoyment of the common passage KLMN by the appellants and therefore, the appellants are not entitled to the relief prayed for.
5. The Trial Court partly decreed the suit holding that XY wall is a common wall belonging to the appellants and respondents 1 and 2 and respondents 1 and 2 cannot have any doorway or windows in the common wall and therefore, they must close the same and also remove the rafters projecting over the terrace portion of the the portion C belonging to the first appellant and granted mandatory injunction and also permanent injunction in respect of taking sewage water through the passage RS.
6. Aggrieved by the same, the first defendant filed Appeal in A.S.No.54 of 2005 on the file of the Principal Sub Court, Madurai and the learned Sub Judge allowed the appeal. Aggrieved by the same, the second appeal is filed by the plaintiffs.
7. At the time of admission of the second appeal, the following substantial questions of law were framed:-
"1) Whether the lower appellate court is correct in reversing the judgment and decree passed by the Trial Court as there is no cause of action for the suit to grant the relief of permanent injunction from obstructing the suit sketch Ex.A1 mentioned "R.S." sewage line by the first defendant on the foot of the oral evidence deposed by DW1 as he had not attempted to obstruct the same on 1.7.2001 when he had filed the written statement by denying the legal right of the plaintiffs to flow their drainage water through the said "R.S." sewage line.
2) Whether the lower appellate court is correct in refusing to grant the relief of permanent injunction regarding the "R.S." sewage line, when the plaintiffs are having legal right to flow their drainage water through the said "R.S."
sewage line, when there are actual threatening on the part of the first defendant and when there is reasonable apprehension on the part of the plaintiff.
3) Whether the lower appellate court is correct in refusing to grant the relief of mandatory injunction for removing the door, windows and the projected asbestos roof installed in the suit sketch Ex.A1 mentioned XY Common wall, when there is a clear admission by the first defendant (DW1) as the "XY" wall is not covered in his sale deed and on the east of the said wall, the first plaintiff's property is situated and he cannot open the door and windows and the Asbestos roof is projected 3'7" over the 1st plaintiff's property.
4) Whether the lower appellate court is correct in stating that the age of the construction of the first floor "B" portion "XY" (common wall portion) is mentioned as 35 years, when the vendors of the plaintiffs and the 1st defendant are one and the same and no question of claiming any easementary right arose to the first defendant."
8. Mr.K.Periyasamy, learned counsel for the appellant submitted that admittedly, all the seven portions were originally owned by two persons and from those two persons, various items were purchased by various persons and the first appellant purchased the portion C and the second appellant purchased the portion D and in their sale deeds, it has been specifically stated that the wall is a common wall belonging to the adjacent owners and even in the absence of such recital, having regard to the nature of the properties, the wall cannot be the exclusive wall of one person, as the wall divides both the houses and therefore, the Trial Court has rightly held that the wall is a common wall and any construction over the common wall in the first floor will also partake the character of common wall and therefore, the wall XY must also be treated as a common wall and hence, the first respondent cannot open any doorway or windows in the common wall so as to affect the privacy of the first appellant. He further contended that at the time of the purchase of the upstairs portion of B by the first respondent, there was no construction in the first floor except the first floor over the portion B and all the seven portions were owned by common persons and therefore, the previous owners opened the doorway and towards the terrace over the portion C which also belonged to them and having sold various portions to various persons, the purchaser cannot maintain the openings on the common wall and the purchaser viz., the first respondent cannot enter into the terrace over the portion C which belongs to the first appellant and therefore, the doorway and windows are to be closed. It is also admitted by the first respondent in evidence that after the purchase of C portion by the first appellant, he cannot enter into the terrace portion of C and when the first respondent cannot enter into the terrace portion of C belonging to the first appellant, he cannot maintain the doorway and the first respondent also admitted that through the windows on the common wall XY, one can see the terrace portion of C and that would affect the privacy of the first appellant and hence, the windows and doorway are to be closed. The learned counsel for the appellants further submitted that the sewage water was taken through the passage RS through an underground pipe and that was in vogue for more than twenty years and all the persons who were using various portions were using the passage to let out the sewage water and that cannot be prevented by the first respondent. He, therefore, submitted that the findings of the first appellate court that the wall XY is the exclusive wall of the first respondent is erroneous and it being a common wall, the first respondent is not entitled to have the doorway or windows in the common wall.
9. On the other hand, Mr.V.K.Vijayaraghavan, learned counsel for the first respondent submitted that admittedly, the upstairs portion of B portion was purchased by the first respondent earlier to the purchase of portions C and D by the appellants. The eastern boundary was the property owned by the vendor which has been purchased by the first appellant subsequently and in Ex.B1 it has been specifically stated that the sale includes the doorway and windows and therefore, the wall XY has been described as the exclusive wall of the first respondent and it cannot be the common wall of the first respondent and the first appellant. He further submitted that admittedly, while constructing the upstairs portion which was conveyed under Ex.B2, there was no construction over the portion C and therefore, the wall XY must be deemed to be exclusive wall of the first respondent and that has been rightly considered by the first appellate court and therefore, there is nothing to interfere with the judgment and decree of the first appellate court. He further submitted that both the portions B and C were owned by the same persons and portion B and the upstairs portion were sold by the owners to the first respondent and the owners retained the C portion and therefore, the first respondent, who purchased the upstairs portion over the portion B is entitled to have the light and air to his portion as per section 13 of the Easements Act and as per section 13(d), he is entitled to have easementary right of light and air through the doorway and window and that cannot be prevented by the appellants and also submitted that the illustrations
(c) and (d) under section 13 of the Easements Act would also make it clear that the first respondent is entitled to have light and air through the window to his portion and that cannot be prevented by the first appellant. Mr.V.K.Vijayaraghavan further submitted that though the appellants are entitled to take the sewage water through the passage RS, the underground drainage connection was given to that area by the Madurai Municipal Corporation and therefore, it is not advisable to let out the sewage water through the underground pipe to open channel and the appellants have to apply to the Corporation for getting connection to the underground drainage and also filed an affidavit to the effect that underground drainage connection was given to the houses owned by the parties and the first respondent has also applied for the drainage connection. He, therefore, submitted that having regard to the underground drainage facility given by the Corporation to the said building, there is no need to let out sewage water through the passage RS and therefore, there cannot be an injunction in respect of letting out sewage water through the passage RS. Mr.V.K.Vijayaraghavan relied upon the judgments reported in VENKATANARASIMHARAJU v. RAMASWAMI (AIR 1941 MADRAS 176), VAIDYANATHAN v. BUHARI & SONS (P) LTD. (1969 I MLJ 435), ANOPCHAND v. MISRILAL (AIR 1963 RAJASTHAN 184) and KUNHI BEAVY v. GOPALAKRISHNA (AIR 1953 MADRAS 849) in support of his contention that when two tenements were owned by one person and one tenement was sold to another person retaining the other tenement, the purchaser of one tenement is entitled to have the easementary right of light and air through his windows through the other tenements retained by the owner and in this case, the portions B and C were owned by the common persons and the first respondent purchased the upstairs portion over B from the owners and the owners retained the other portion viz., C and therefore, as per section 13(d) of the Easements Act, and as per illustration (c) and (d) referred thereunder and as per the above judgments, the first respondent is entitled to have light and air through the windows and the first appellant cannot maintain a suit directing the first respondent to close the doorway and windows. He also relied upon the judgments reported in BHERULAL v. MOHAN SINGH (AIR 1966 Rajasthan 123), MARGARET AMMAL v. SUSAI MARI (1966-2-LW 27) and JAG NARAIN v. RAM DULARAY (AIR 1979 Allahabad 71) in support of his contention that permitting sewage water through the neighbour's land amounts to nuisance and cannot be acquired and when alternate arrangements are made for letting out the sewage water, the party cannot insist upon letting of sewage water through the earlier passage and submitted that in this case the Corporation has provided alternate passage viz., underground drainage and the appellants have to apply for connection to let out sewage water through the underground drainage and therefore, they cannot maintain a suit for injunction regarding letting out of sewage water.
10. Heard both sides.
11. It is admitted by both the parties that the entire row of houses viz., A, A1, B, C, D, E and F were owned by two persons and the first respondent purchased A, A1 and the upstairs portion of B under sale deeds, Exs.B1 and B2 dated 4.7.2001 and the appellants purchased the portions C and D from the same owners under the documents, Exs.A1 and A2 dated 9.7.2001. Therefore, the sale deeds in favour of the first respondent were earlier in point of time. It is also admitted that all houses are row houses having common entrance and each house is divided by one wall. Therefore, having regard to the nature of the construction of the houses and the wall divides two houses, the natural presumption is that the wall is a common wall and it cannot belong exclusively to one owner of any of the portions. The wall is known as party wall in legal parlance and as laid down in the judgment reported in A.KARUPPIAH PILLAI v. NARAYANA MUDALIAR ((1967) 1 MLJ 91), when a party wall between two adjacent houses belonged to one party 'X' and the other party had an easement or right to have the party wall maintained as a dividing wall, 'X' had the right to demolish it temporarily for renovating it and building in it a door and a window when no right of privacy was involved. Therefore, even assuming that XY wall is the exclusive wall of the first respondent as contended by him, he can maintain the doorway and windows in the wall so long as the right of privacy of the appellants is not affected. In this case, it is admitted by the first respondent and it is also a common knowledge that when the appellant puts up construction in the first floor of portion 'C', his privacy will be affected by the openings of doorway and windows and the first respondent cannot enter into the terrace portion of C through the doorway. Further, it is admitted that the rafter and the asbestos roof are protruding towards the eastern direction over the terrace portion of C and hence, that would also affect the right of the first appellant and the first respondent cannot place the rafters protruding on the side of the first respondent's property.
12. Further, having regard to the nature of properties and the construction of row of houses, it cannot be stated that the party wall which divides the two houses is the exclusive wall of one person. The Book on Easement by the author Katiyar in his X Edition at page 139 had dealt with the law relating to party wall as follows:-
"Easements relating to party-walls. In its popular sense, a "party-wall_ usually means the dividing wall between two tenements or buildings. In Watson v. Gray, four senses have been given in which the term may be used, namely,--
(1) a wall of which the two adjoining owners are tenants-in-common; (2) a wall divided longitudinally into two strips, one belonging to each of the neighbouring owners;
(3) a wall which belongs entirely to one of the adjoining owners but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements;
(4) a wall divided longitudinally into two moieties, each moiety being subject to a cross-easement in favour of the owner of the other moiety.
With reference to the first sense, it is established as a legally accepted notion of the term "party-wall" that it is a wall between the properties of two adjoining owners and that these owners are tenants-in-common in respect of that wall. It must be used by the co-tenants for a common benefit or convenience of both the co-tenants. Hence, if one of them increases or lowers its height, it amounts not only to an interference with the right use by the other but also it amounts to an exclusion. Without proof of injury or loss or damages the plaintiff can sue for a mandatory injunction to have the wall brought back to the original position.
The rights of co-owners in respect of a party wall or joint wall can be summoned up as follows:
(1) Each co-owner can reasonably use it so as to interfere with the enjoyment of wall by the other;
(2) no co-owner should do anything which may damage or weaken the wall; (3) its user by one should not amount to an ouster of the other or destruction of the wall.
If a co-owner builds a new piece of wall on the top of the party wall, with the consent or a quiescence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall. Where one co- owner wanted to put up a slab in the wall by inserting the same by four inches on one side of the wall and then plastering the same so as not to weaken the wall, no consent of the other co-owner would be necessary. Such user is reasonable."
13. Therefore, it cannot be contended by the first respondent that the wall XY is the exclusive wall belonging to him. Further, even on a reading of Exs.B1 and B2 the sale deeds in favour of the first respondent, it cannot be held that the wall XY is the exclusive wall of the first respondent. Admittedly, in Ex.B2, the sale deed in respect of the upstairs portion of 'B' purchased by the first respondent, it has not been stated that XY wall is the common wall. As stated supra, the eastern boundary was mentioned as the property belonging to the vendor. Therefore, in the absence of any specific recital in Ex.B2 stating that XY wall is the exclusive wall of the purchaser, the first respondent cannot claim any title over the same. It is also admitted that XY wall was constructed over and above the wall that divides the houses B and C in the ground floor. When the dividing wall of the houses B and C is a common wall, any construction on the common wall must also be treated as the common wall and no one can claim any exclusive right over the same in the absence of any specific recital in the sale deed. On the other hand, in the sale deed, Ex.A2 in respect of C portion, it has been specifically stated that the wall on the western side is the common wall. Admittedly, the wall XY is the western wall in respect of C portion and the eastern wall in respect of B portion. Therefore, in the sale deed in favour of the first appellant, the wall has been mentioned as common wall and in the sale deed in favour of the first respondent, nothing has been stated about the exclusive nature of the wall in favour of the first respondent. Therefore, from the recital in the sale deed and also from the nature of property, it can only be construed that XY wall is the common wall belonging to the appellants and the respondents and in the common wall, no one can open a doorway or windows.
14. As regards the contention of the learned counsel for the respondents that as per section 13(d) of the Easements Act and the illustrations (c) and (d) given thereunder, the first respondent is entitled to have light and air through the doorway and windows to his portion and that cannot be prevented by the appellants, in my opinion, that section and illustrations cannot be applied to the facts of this case. Section 13(d) deals with Easements of necessity and quasi-easements. A right to receive light and air is a continuous easement. It is not an apparent easement and under section 13(c) and (d), an Easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representatives of the Testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The illustrations (c) and (d) also explain the same by stating that when A sells his house with windows overlooking A's land, which A retains, the light which passes over A's land to the windows is necessary for enjoying the house as ti was enjoyed when the sale took effect. B is entitled to the light and A cannot afterwards obstruct it by building on his land. Therefore, a reading of the illustration (c) under section 13 of the Easements Act, it is clear that when two tenements are owned by one person and the owner sold one tenement retaining the other, the purchaser of one tenement is entitled to have the same light and air that was enjoyed obviously by the owner of that portion which was sold to him. Therefore, it was contended by the learned counsel for the respondents that in this case also the portions B and C were owned by one person and upstairs portion of B was sold by the common owner to the first respondent retaining the portion C and thereafter C portion was sold to the first appellant and therefore, the first respondent, who owned the upstairs portion of B is entitled to have the light and air through the doors belonging to the first appellant.
15. According to me, section 13(d) does not apply to the case of common wall owned by two persons. The easement is a right that the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land and the land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner is called as dominant owner and the land of which the liability is imposed is called the servient heritage and the owner is servient owner. Therefore, the law of easement presupposes the fact that servient tenement and servient heritage must belong to one person and the dominant heritage belongs to another person. In this case, the easement right is claimed through doors and windows opened in the wall XY. I have held that XY is the common wall belonging to the first appellant and the first respondent. Therefore, when the wall belongs to two persons and it is a common wall, one person cannot claim any easementary right over the another through the common wall. Further, it is settled law that the co-owner of a common wall cannot have any opening in the common wall by opening doorway or to have window and it is also laid down in the judgments reported in 1967 (1) MLJ 91 (cited supra) that so long as the privacy is not affected, a person entitled to the benefit. In this case, the privacy will be affected and it is also admitted by RW1 in his evidence. Hence, the first respondent is not entitled to have the opening of the doorway or windows on the common wall XY and the finding of the lower appellate court that the wall is not common wall and it is the exclusive wall is erroneous and is liable to be set aside. Therefore, the substantial questions of law 3 and 4 are answered in favour of the appellant.
16. The lower appellate court refused to grant relief of temporary injunction in respect of taking of sewage water through RS on the basis of the evidence of RW1 wherein he has admitted that he did not prevent the sewage water to be taken through the underground pipe through the passage RS. The first appellate court failed to appreciate the statement that the first respondent questioned the right of the appellant to take sewage water through the passage RS. Admittedly, the sewage water from the portions were taken through the passage RS through underground pipe and when that is admitted, it cannot be prevented by the first respondent. No doubt, after the facility of underground drainage made available to the suit property, the appellants have to apply for connection of underground drainage and till such connection is given to the first appellant, the appellant is entitled to let out water through the common passage RS. Therefore, the findings of the first appellate court that the appellants are not entitled to permanent injunction regarding the letting out sewage water through the passage RS is also set aside. Therefore, substantial questions of law 1 and 2 are also answered in favour of the appellants.
17. Further, it is made clear that when underground drainage facility is available, it is the duty of the appellants to apply for such connection to let out sewage water through underground drainage and without applying the same, they cannot insist on letting sewage water through the underground pipe under the passage RS. Hence, the first appellant is granted six months time to apply for underground drainage connection to let out sewage water from the portions owned by them.
In the result, the judgment and decree of the first appellate court is set aside and the second appeal is allowed. No costs.
ssk.
To
1. The Principal Sub Judge, Madurai.
2. The Additional District Munsif, Madurai Town.