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Mohan and ors. Vs. Bishambhab Sahai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in78Ind.Cas.193
AppellantMohan and ors.
RespondentBishambhab Sahai and anr.
Cases ReferredJadu Ram v. Kenhaia Ram
Excerpt:
limitation act (ix of 1908), schedule i, article - 32, applicability of--easement--servient tenement, heavier burden imposed on--suit for removal of burden. - - an appeal was preferred to this court and for the first time in this court it was contended that the claim was barred by article 32. this plea prevailed before a learned judge of this court and he held that the said article applied and as the construction complained of had admittedly been made more than two years prior to the institution of the suit he dismissed the claim. 90, in which a learned judge of this court held that article 32 had no application to a matter like this......that there has been a perversion of the purpose for which the defendants had a right to use the wall. article 32 cannot apply to a case of this kind. a common instance of the application of the article is that of a tenant who having a right to cultivate land digsea tank in it or builds a house on it. our attention has been drawn to the ruling in jadu ram v. kenhaia ram 38 ind. cas. 90, in which a learned judge of this court held that article 32 had no application to a matter like this. that was a case which was much stronger than the case before us. we are unable to agree with the view which the learned judge who decided this case has taken on the point. in our judgment the article in question does not bar the present suit. there was no other question to be considered in the appeal......
Judgment:

1. The question which arises in this appeal is whether the claim of the plaintiffs is barred by Article 32, Schedule I of the Limitation Act. The facts are these. Between the houses of the parties lies a wall which in previous litigation between them was declared to be the property of the plaintiffs. The defendants have placed some beams on that wall and masonry roof. The plaintiffs' suit was instituted for the removal of the beams in so far as they rested on the plaintiffs' wall. The defendants claimed a right of support for the beams of their roof. The lower Appellate Court, without finding whether the defendants had a thatched roof resting on the plaintiffs' wall, held that, as the defendants had placed a much heavier burden on the wall than had existed before, the plaintiffs were entitled to have that burden removed and decreed the claim. An appeal was preferred to this Court and for the first time in this Court it was contended that the claim was barred by Article 32. This plea prevailed before a learned Judge of this Court and he held that the said Article applied and as the construction complained of had admittedly been made more than two years prior to the institution of the suit he dismissed the claim. The plaintiffs have preferred this appeal. The question is by no means free from difficulty but, after considering the matter, we are of opinion that Article 32 is not applicable to the present case. That Article runs as follows :

Against one who having a right to use property for specific purposes perverts it to other purposes.

2. It is admitted that the purpose for which the defendants could use the wall was the support which the wall could afford to their beams, we do not think that they have used the wall for a different purpose. The only purpose for which they could use the wall was that of placing beams on it. They have carried out the same purpose but in a different way, that is to say, according to the finding of the Court' below, they have placed upon the wall heavier and more numerous beams than had existed before and, instead of putting a thatched roof, they have placed a masonry roof. The real purpose, however, is that of support for the beams upon which the roof now rests. Therefore, it cannot be said that there has been a perversion of the purpose for which the defendants had a right to use the wall. Article 32 cannot apply to a case of this kind. A common instance of the application of the Article is that of a tenant who having a right to cultivate land digsea tank in it or builds a house on it. Our attention has been drawn to the ruling in Jadu Ram v. Kenhaia Ram 38 Ind. Cas. 90, in which a learned Judge of this Court held that Article 32 had no application to a matter like this. That was a case which was much stronger than the case before us. We are unable to agree with the view which the learned Judge who decided this case has taken on the point. In our judgment the Article in question does not bar the present suit. There was no other question to be considered in the appeal. We, therefore, allow the appeal, set aside the decree of the learned Judge of this Court and restore that of the lower Appellate Court. The appellants will have their costs of both the hearings in this Court. We allow the defendants two months' time from this date for the removal of such portions of the beams in dispute as rest on the plaintiffs' wall.


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