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Gordhan Dalpatram Vs. Chotalal Hargovan, a Minor by His Guardian Bai Parsan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom79
AppellantGordhan Dalpatram
RespondentChotalal Hargovan, a Minor by His Guardian Bai Parsan
Excerpt:
easement - adjoining buildings--side wall. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said..........and has placed a seat upon it. the subordinate judge found that the defendant had acquired no right of easement in respect of the wall, since she had not shown that she was entitled to vertical or lateral support from it for her own house, which is supported solely by pillars and cross beams placed on and over hero a own ground. the assistant judge finds also that the defendant's--house is quite independent of the plaintiff's wall, that it is supported throughout on wooden pillars adjoining the wall in dispute, and that the cross-beams do not penetrate or touch the wall. nevertheless, he is of opinion that she has acquired a right over the plaintiff's premises to the extent that they shall provide the side wall of her first floor room and a retaining wall, 2 feet 4 inches high, to.....
Judgment:

Parsons, J.

1. Both the lower Courts have found that the wall in question is the property of the plaintiff and that the defendant has recently and unlawfully made in it cavities, such as a niche and a recess, and has placed a seat upon it. The Subordinate Judge found that the defendant had acquired no right of easement in respect of the wall, since she had not shown that she was entitled to vertical or lateral support from it for her own house, which is supported solely by pillars and cross beams placed on and over hero a own ground. The Assistant Judge finds also that the defendant's--house is quite independent of the plaintiff's wall, that it is supported throughout on wooden pillars adjoining the wall in dispute, and that the cross-beams do not penetrate or touch the wall. Nevertheless, he is of opinion that she has acquired a right over the plaintiff's premises to the extent that they shall provide the side wall of her first floor room and a retaining wall, 2 feet 4 inches high, to the terrace above this room. We are unable to concur in this decision. By merely building her house on her own ground close to the wall of the plaintiff's house, which it does not touch, but leaves entirely undisturbed and uninterfered with, the defendant can have acquired no easement over the plaintiffs premises. If she had built her house against the wall and so used it for supporting her own house, or if she had fixed her beams and posts in the wall, as was done in Balabawa v. Sitaram Shastri Printed Judgements for 1884 p. 178 or if she had used the top of the wall as a terrace or if she had driven nails in it, as in Hawkins v. Willis 2 Wil. 173 she might have acquired an easement over it; but by merely building on her own ground, close to the plaintiff's house, she can have acquired no right over the wall, even though she may have built no side wall herself to her own house, but trusted to the plaintiff's keeping up his wall to shelter her house on that side. We think the Subordinate Judge has correctly appreciated the law governing the case, and we amend the decree of the Assistant Judge by striking out so much of it as declares that the plaintiff's right of ownership is subject to any right on the part of the defendant. Costs throughout on the defendant.


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