1 SECOND APPEAL NO.443 OF 2008 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 443 OF 2008 WITH CIVIL APPLICATION NO.1126 OF 2008 Smt.Sulochana Dattatraya Bhujbal : Appellant versus Prabhakar Sadashiv Urunkar : Respondent. Mr.Amit Borkar for the Appellant. Mr. S R Ganbavale for Respondent No.1 CORAM : R M SAVANT, J. DATE : 02nd August 2010 P.C. 1 This Second Appeal takes exception to the Judgment and Order dated 18th January 2008 passed by the learned Ad­hoc District Judge, III, Kolhapur by which order the Judgment and Decree passed dated 30th April 2005 passed by the learned Civil Judge, Junior Division, Gargoti was set aside. The Appellant herein is the Original Plaintiff who had filed a suit for perpetual injunction restraining the Defendant from making construction over the common wall. The said common wall is between the House Property of the Appellant bearing G.P. No.1171/1 of village Mouje Gargoti, Tal. Bhudargad and the House Property of the Defendant bearing G.P.No.1170 of the same village. The Appellant claims through the brother of the Defendant who sold part of the said House Property to him. On the Plaintiff coming to know that the Defendant was to commence construction and on starting digging for the said purpose, the said suit came to be filed which was numbered as Regular Civil Suit No.107 of 2001. 2 SECOND APPEAL NO.443 OF 2008 2 The trial Court after observing that both the co­owners of the adjoining properties are entitled to reasonable user of the common wall as well as after observing that one cannot claim his exclusive right over the half wall strip, but on the ground that the construction over the common wall can only be done after the consent of both the parties, decreed the said suit and granted injunction as prayed for by the Plaintiff. 3 Aggrieved by the decree, the Defendant filed Regular Civil Appeal No. 194/2005 in the District Court, Kolhapur. The Lower Appellate Court has reiterated the finding of the trial Court that the wall in between two properties is a common wall and in the light of the fact that the relations between the parties were strained and observed that one cannot expect from any one of them to give consent for carrying out any construction over the common wall, set aside the decree passed by the trial Court on the ground that the relief of perpetual injunction cannot be granted to the Plaintiff in view of Section 41(h) of the Specific Relief Act, 1963 as the Plaintiff has not claimed the relief of declaration of his exclusive ownership over the disputed common wall. The Lower Appellate Court has also observed that though the Plaintiff had come out with the case that prejudice would cause to him, neither in the pleadings nor in his evidence, any such material has been put forth. 4 The learned counsel appearing for the Appellant/Original Plaintiff by placing reliance on the judgment of a learned Single Judge of this Court reported in 2001 (1) Mh.L.J. 143 in the matter of Ashareddy s/o Narayanreddy v/s. Lingareddy s/o Lingappa and ors. contended that consent of the co­owners was absolutely essential for carrying out repairs and/or additional construction upon the 3 SECOND APPEAL NO.443 OF 2008 common wall and in the instant case, since the Appellant/original Plaintiff had not consented, the Respondent/original Defendant can not be allowed to carry out any repairs and/or additional construction upon the said common wall. Since reliance was placed on the said Judgment, a reference to the facts of the said case would be necessary which would be made in the later part of this order. 5 In the instant case, the Respondent/Original Defendant has filed an Affidavit dated 21/6/2010 as per the directions issued by this Court with a view to resolve the issue. In the said affidavit Paras 2 and 3 are relevant and are reproduced as follows :­ “2 I state and submit that, being the co­owner of the said common wall, I am entitled to undertake necessary repairs and/or raise the height of the3 wall, without causing any prejudice to the rights of the Appellant herein. Therefore, in accordance with the said, I am repairing the front portion of the house of my Gram Panchayat Property No.1170, by erecting two cement pillars to support the common wall and the east side wall of my property. 3 I say that by the said repairing of the common wall and/or the other periphery walls of my house, I am unlikely to cause any damage, whatsoever, to the common wall, co­owned by the Appellant and in any case, no prejudice to any rights of the Appellant would be caused, by the repairs which are indicated by me in my written statement filed in Regular Civil Suit No.107 of 2001. I further stated that, I am not excluding the Appellant from the use of the common wall nor am I obstructing the usage of common wall by the Appellant nor am I scrapping or otherwise damaging the common wall. I further state that, I will install and erect appropriate water channels, to prevent seepage and/or leaking of water on the common wall and would take all measures necessary, to maintain the common wall between the Appellant and myself, and would not cause any damage and/or inconvenience to the usage of the suit property of the Appellant.” 4 SECOND APPEAL NO.443 OF 2008 6 Now coming to the judgment relied upon by the learned counsel for the Appellant/Original Plaintiff the facts of the said case are required to be noted. The facts of the said case were that while taking up construction of the common wall, the windows and ventilators of the common wall involved therein were opened up and in the said context a learned Single Judge of this Court has held that the co­owner has a right to move the Court under Section 35 of the Indian Easements Act, 1882. Such is not the case in the instant matter as what is sought to be done is the repairs and/or raising the height of the common wall, in the light of the affidavit dated 21st June 2010 filed by the Respondent/Original Defendant, in my view, the grievance or apprehension, if any of the Appellant/Original Plaintiff stands assuaged. Considering the findings recorded by the Lower Appellate Court, in my view, the Lower Appellate Court has rightly upset the decree passed in favour of the Appellant/Plaintiff. In my view the above Second Appeal does not raise any substantial question of law. Hence I do not find any merit in the above Second Appeal which is accordingly dismissed. 7 However, it is made clear that the statements made in the affidavit dated 21st June 2010 filed by the Respondent/Original Defendant are accepted and the Respondent would construct over the common wall in terms of the assurances given in the said affidavit. 8 In view of dismissal of the above Second Appeal, the Civil Application No.1126 of 2008 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]