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Jaddu Ram Vs. Kanhaia Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All92; 33Ind.Cas.90
AppellantJaddu Ram
RespondentKanhaia Ram and anr.
Cases Referred and Gangadhar v. Zahurriya
Excerpt:
.....indefinite finding of the lower appellate court he raised the wall from 11 feet to 19 feet erecting a second storey of his house and put a dopalia or double-sided thatch, thereby placing an additional burden upon the plaintiffs' wall. to my mind that was an alteration which constituted an extension or encroachment upon the original easement enjoyed by the defendant and also an actionable wrong. no question of express grant arises in the case, so that the limit of the defendant's right of support must he and has been determined by his actual enjoyment up to the date of the encroachment complained of. cases of that kind are clearly cases of degree and it is not always easy to say when a change is a mere increase or encroachment, and when it is an actual perversion. it will be decreed that..........of. it is quite clear from the findings of the court below that in this case the defendant has a right of support from or easement over the plaintiffs' wall abutting on the defendant's property for a roof of his adjoining house, as it was originally constructed as far back as the year 1901, namely, ekpalia or one-sided thatch. what the defendant has done and what the plaintiffs complain of is that in the year 1901 at any rate, if not later according to the somewhat indefinite finding of the lower appellate court he raised the wall from 11 feet to 19 feet erecting a second storey of his house and put a dopalia or double-sided thatch, thereby placing an additional burden upon the plaintiffs' wall. to my mind that was an alteration which constituted an extension or encroachment upon the.....
Judgment:

Walsh, J.

1. One substantial question of law has been thoroughly argued in this case, namely, whether this suit ought to have been brought by the plaintiffs within two years of the discovery of the erection complained of. It is quite clear from the findings of the Court below that in this case the defendant has a right of support from or easement over the plaintiffs' wall abutting on the defendant's property for a roof of his adjoining house, as it was originally constructed as far back as the year 1901, namely, ekpalia or one-sided thatch. What the defendant has done and what the plaintiffs complain of is that in the year 1901 at any rate, if not later according to the somewhat indefinite finding of the lower Appellate Court he raised the wall from 11 feet to 19 feet erecting a second storey of his house and put a dopalia or double-sided thatch, thereby placing an additional burden upon the plaintiffs' wall. To my mind that was an alteration which constituted an extension or encroachment upon the original easement enjoyed by the defendant and also an actionable wrong. No question of express grant arises in the case, so that the limit of the defendant's right of support must he and has been determined by his actual enjoyment up to the date of the encroachment complained of. The point of law argued before me is that because the action for such an encroachment is in the language of Article 32, Schedule II, of the Limitation Act 'against one who having a right to use property for specific purposes perverts it to other purposes,' two years' limitation should be applied to the case, and authorities were cited to me, namely Lack Ram Rao v. Jangi Rai 12 Ind. Cas. 108 : 8 A.L.J. 914; Sharoop Dass Mondal v. Joggessur Roy Chowdhry 26 C. 564 : 3 C.W.N. 464 and Gangadhar v. Zahurriya 8 A. 446 : A.W.N. (1886) 210 showing that Article has been judicially applied to cases where, for example, a mortgagee has erected buildings inconsistent with the original character of an occupancy tenancy or where a tenant has excavated 'a tank upon land granted for agricultural purposes or has converted arable land into a grove. Cases of that kind are clearly cases of degree and it is not always easy to say when a change is a mere increase or encroachment, and when it is an actual perversion. In this case I do not think it matters, because in my view the language of the Article is inappropriate to a case of encroachment upon an easement or right of support. No doubt the language of Article 32 in a colloquial sense exactly fits and describes the complaint in this case, but I decide that it is altogether inapplicable on the broad ground that the defendant's case here is a claim of a right of support or easement which can only be acquired after 20 years uninterrupted enjoyment, and to hold that the plaintiffs were prohibited by Article 32 from bringing an action after the expiration of two years would be inconsistent with the general law and would confer upon the defendant an easement after the expiration of that time. It is plain, therefore, that the language of the Article was never intended to apply to such a case. The result is that the defendant is wrong and that although an encroachment upon easement may amount to a perversion of the purpose for which the owner of the dominant tenement has the right to use the property, nonetheless the plaintiffs are not restricted to two years in order to bring their suit.

2. The other points in the case which have been discussed are unimportant and may be shortly disposed of. There seemed at first sight some reason to doubt whether the plaintiffs, not having brought their suit for four or five years, were entitled to an injunction. However, taking a broad equitable view of the circumstances which I need not set out, I think the lower Appellate Court, although it has not discussed it very fully, has arrived at the right view that the plaintiffs have done nothing which in equity deprives them of the right to come here and have this encroachment removed. They are disposed to take a reasonable view of their rights. My decision being in favour of the respondents the decree of the Court below will be modified in the following manner. It will be decreed that the defendant be ordered to bring the plaintiffs' wall to its former height and to restore his roof to ekpalia thatch instead of dopalia and that his servants or agents be restrained from raising, altering or in any way increasing the burden upon the plaintiffs' wall beyond the support enjoyed before the mortgage of 1901 by his house with ekpalia thatch. In other respects the appeal is dismissed with costs.


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