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Bishambar Sahai and anr. Vs. Janki Dad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in69Ind.Cas.819
AppellantBishambar Sahai and anr.
RespondentJanki Dad
Excerpt:
limitation act (ix of 1908,), schedule i, article 32 - ease, merit, right of--perversion--suit against perversion--limitation. - - his suit was not filed till august 1919. the learned council for the appellants argues that this is a clear case of perversion of a right, and as the perversion first became known to the plaintiff more than two years before the date of the said, the suit must fail under the provisions of article 32, schedule i, act ix of 1908. this contention must prevail......a thatch against a wall belonging to the plaintiff-respondent. in 1916 they substituted for this thatch a masonry or gemimasonry building and supported the beams necessary for its construction upon the wall in question, thereby they undoubtedly increased considerably the burden upon the wall, the only point taken in appeal is that the plaintiff's claim for relief is time barred. in the 7th paragraph of his plaint he states that the conversion from, a thatch into a masonry building took place in 1916 impliedly to his knowledge. his suit was not filed till august 1919. the learned council for the appellants argues that this is a clear case of perversion of a right, and as the perversion first became known to the plaintiff more than two years before the date of the said, the suit must.....
Judgment:

Stuart, J.

1. The fasts in this appeal are these: The appellants have a right by way of easement to support a thatch against a wall belonging to the plaintiff-respondent. In 1916 they substituted for this thatch a masonry or gemimasonry building and supported the beams necessary for its construction upon the wall in question, Thereby they undoubtedly increased considerably the burden upon the wall, The only point taken in appeal is that the plaintiff's claim for relief is time barred. In the 7th paragraph of his plaint he states that the conversion from, a thatch into a masonry building took place in 1916 impliedly to his knowledge. His suit was not filed till August 1919. The learned Council for the appellants argues that this is a clear case of perversion of a right, and as the perversion first became known to the plaintiff more than two years before the date of the said, the suit must fail under the provisions of Article 32, Schedule I, Act IX of 1908. This contention must prevail. Undoubtedly, a greater burden has been thrown upon the wall, but on the fasts there has nor, only been an increase of the burden, but a perversion of the user allow-able. There is a very considerable distinction between the nature of a support required for a thatch and the nature of a support required for a masonry or semi-masonry building. The risers are essentially different, and a person entitled to the former who proceeds to the latter, is undoubtedly perverting his right. The contention of the appellants must prevail and the suit must stand dismissed, I decree the appeal accordingly. The suit will stand dismissed. The plaintiff will pay his own casts and those of the defendants in respect of the relief in question in all Courts.

2. With regard to the cross-objections, I find that they were not pressed, in the lower Appellate Court, There is no force in them in any circumstance. This was a suit for a mandatory injunction and not for possession. I dismiss the cross-objections with costs.


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