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Fidaalli Mulla Kurbanalli Vs. Akbaralli Kadarbhai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 241 of 1936
Judge
Reported inAIR1939Bom210; (1939)41BOMLR387
AppellantFidaalli Mulla Kurbanalli
RespondentAkbaralli Kadarbhai
Excerpt:
.....24, 25 and 27 - right of support-owner of upper floor of building entitled to support from lower floor-right of the owner to enter ground floor for necessary repairs-easement-natural right.;where the first floor and the ground floor of a building belong to different owners, the owner of the first floor is entitled to support to his floor from the ground floor ; but the owner of the ground floor is not liable to keep his floor in repair in order to make the right of support effective. the former is, however, entitled to enter upon the ground floor for the purpose himself of doing the necessary repairs.;such a right of support is not a natural right but an easement. - - he also claims a right to the use of a privy and to draw water from a well on the defendant's land and to the use of..........from a decision of the district judge of west khandesh at dhulia. the suit relates to a house, the ground floor of which is vested in the defendant and the first floor of which is vested in the plaintiff. the house was originally partitioned as long ago as 1876, and, it is not, in my opinion, necessary to refer in detail to the title prior to suit.2. the plaintiff's case is that as owner of the first floor he is entitled to support from the ground floor. he also claims a right to the use of a privy and to draw water from a well on the defendant's land and to the use of a staircase. the trial court held that the right to the privy had been abandoned, and it granted an injunction to restrain the defendant from interfering with the plaintiff's right to draw water from the well and to the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from a decision of the District Judge of West Khandesh at Dhulia. The suit relates to a house, the ground floor of which is vested in the defendant and the first floor of which is vested in the plaintiff. The house was originally partitioned as long ago as 1876, and, it is not, in my opinion, necessary to refer in detail to the title prior to suit.

2. The plaintiff's case is that as owner of the first floor he is entitled to support from the ground floor. He also claims a right to the use of a privy and to draw water from a well on the defendant's land and to the use of a staircase. The trial Court held that the right to the privy had been abandoned, and it granted an injunction to restrain the defendant from interfering with the plaintiff's right to draw water from the well and to the use of the staircase, and on those two points the District Judge agreed with the trial Court, and in my opinion there is no reason for interfering with the concurrent judgments of the two lower Courts on those points.

3. The main question, which has been argued, is as to the right of support. The learned trial Judge held that the plaintiff was entitled to support to his first floor from the ground floor of the defendant, but he held that the defendant was not liable to keep his ground floor in repair in order to make this right of support effective but that the plaintiff could enter upon the ground floor for the purpose himself of doing the necessary repairs, and he granted an injunction to protect those rights. In appeal the learned District Judge held that the defendant was liable to keep the ground floor in repair in order to render support to the first floor of the plaintiff effective. In my opinion, the order of the trial Court was right and the order of the lower appellate Court was wrong.

4. I think that the learned District Judge ignored the provisions of the Indian Easements Act, which in my opinion are perfectly plain, and state what is the common law of England. Section 13 of the Act deals with the question of easements of necessity and quasi-easements, which may arise when property formerly in joint ownership is transferred to different parties, and it is provided that:

Where a partition is made of the joint property of several persons

* * * *(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.

5. Then illustration (m) is in these terms:

Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amoumt of vertical support from B's portion as is essential for the safety of the upper room.

6. So that there can be no doubt that the plaintiff is entitled to a right of support. Then, Section 24 provides that

The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the eervient heritage.

7. Section 25 provides that

The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement must be defrayed by the dominant owner

8. Section 27 provides that

The servient owner is not bound to do anything for the benefit of the dominant heritage and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient.

9. In my opinion, those sections justify the order which the trial Court made and do not justify the additional order made by the District Judge, which throws the expenses of the repairs upon the owner of the servient tenement. The learned District Judge gets out of the difficulty by holding that the right of support claimed by the plaintiff is not an easement but a natural right ; but clearly you cannot have a natural right of support for something, which itself has no natural existence. The proposition is stated in Halsbury's Laws of England, (2nd edn.), Vol. XI, paragraph 640, in these' terms (p. 364):

The owner of land has no natural right to support for buildings or of the additional weight which the buildings cause. Support to that which is artificially imposed upon land cannot exist ex jure naturm, because the thing supported does not itself so exist.

10. Here not only does the object which claims support not exist ex jure natur, but the object from which support is sought also does not so exist.

11. In my opinion the appeal must be allowed with costs in this Court and the lower appellate Court. The order of the trial Court to be restored.

12. Cross-objections dismissed with costs.

Rangnekar, J.

13. I agree.


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