1. This is a second appeal by the plaintiff who got a decree for damages to the extent of Rs. 200 from the Court of first instance which was reversed by the lower appellate Court. The suit was brought on the allegations that the house and the shop of the plaintiff have been enjoying the right of easement of support from the wall of the defendant's shop for more than 30 years, and that the defendant had altered the course of a deep drain bringing it close to the boundary of the plaintiff's land, with the result that the southern wall and the ground floor and the upper storey of the plaintiff's house along with a roof had fallen down. The facts as regards the cause of the damage is as follows:
The learned Munsif has come to the conclusion that the damage caused to the plaintiff's house and shop was chiefly due to the excavation of the nala. I agree with the learned Munsif in this finding.
2. But the lower appellate Court also came to the finding:
'There is no definite evidence to show that the period of 20 years had been completed before the alleged encroachment. I am of opinion that the plaintiff failed to establish any right of support for his building.
3. We may note that this finding is also the finding of the Munsif. In second appeal it was argued that the sanction granted by the Municipality for raising constructions and the final report about their completion were public documents, and the Court below was wrong in discarding the latter as unreliable. On 4th April 1904, the plaintiff made an application to build his house. Under Section 87(4), Act 1 of 1920, it was necessary for the plaintiff to commence his building within one year of sanction being granted on that application. The exact date of granting sanction is not shown. The plaintiff next relied on a report dated 11th March 1905, by a municipal jamadar to the effect that completion had been made according to the order. In those clays apparently there was no further inspection of buildings. The lower appellate Court deals with this evidence as follows:
An application for sanction to build the house was made in 1904, but there is no,satisfactory evidence to show when the construction was completed. The municipal jamadar's report is not a very reliable or convincing document, and the probability is that the jamadar was concerned only with constructions abutting on the municipal streets. The oral evidence on the point consists of the statements of the plaintiff and Chiraunji Lal. They have both given a vague period of 20 or 22 years. There is no definite evidence to show that the period of 20 years had been completed before the alleged encroachment.
4. We are of opinion that no doubt we would have come to a different finding on the evidence before the lower appellate Court but we consider that it is not open to us to reverse that finding in second appeal, and accordingly we are bound by that finding
5. The next ground advanced in second appeal was that on the facts found the plaintiff's right of support to his building was legally established, and that the view of law taken by the Court below as to the plaintiff's right of support from adjacent land and the defendant's right to dig a drain just close to the plaintiff's wall was unsound and incorrect The argument of the learned Counsel for the appellant was that quite apart from the period of 20 years his client having made a wall on the ground had a right of support from the subjacent wall of the defendant under Section 7, Easements Act. He referred for this proposition to illustration (e) and the explanation to that illustration. In this connexion we may refer to Peacock's Law relating to Easements in British India, Edn. 3, p. 139, which states as follows:
The right of support for land in its naturals condition by adjacent land is a natural right and incidental to the ownership of property. Any change in the land supported which converts its natural character into an artificial character such as would be caused by placing,, buildings upon it or excavating it would obviously impose a changed or increased burthen upon the adjoining land the effect of' which would not alter or increase the previous obligation unless the existence of an easement could be proved.
6. We are of opinion that although the plaintiff has a right to support from the subjacent soil of the defendant there is nothing in the evidence in the present case to show that right has been infringed. An infringement of that right, would take place if for instance the digging of the drain by the defendant had resulted in a portion of the soil of the plaintiff's land falling into that drain. The finding of the learned Munsif is that the wall of the plaintiff in question is at a distance at the western extremity of 2 '2' from the drain and at a less distance at the eastern extremity. But there is no finding whatever of the lower appellate Court that any portion of the plaintiff's wall has fallen into the drain. On the contrary the finding is that the wall of the plaintiff has collapsed because the drain having been dug to a depth of nine feet and this depth being 4'5' below the foundation of the wall of the plaintiff the wall of the plaintiff has collapsed. Section 7, 111. (e) clearly states that land is in its natural condition when it is not excavated and not subjected to artificial pressure. In the present case there is artificial pressure from the building of the plaintiff and that artificial pressure has produced a greater stress than the stress which the soil is able to bear when deprived of the support of the subjacent soil of the defendant We consider therefore that the lower appellate Court was correct in applying the right of easement by prescription of 20 years under Section 15, Easements Act, and that it is Section 15 and not Section 7 which applies to the facts of the present case. Some further argument was made on ground 5 of appeal that the nala in question was an actionable nuisance but the finding of fact by the lower appellate Court is to the contrary, and we are bound by that finding.
7. Accordingly we dismiss the appeal of the plaintiff. In regard to costs the following facts must be taken into consideration. The defendant was very well aware that for a long time the plaintiff's wall had been in that position. It would have been quite easy for the defendant to make her drain a slightly greater distance from the wall of the plaintiff, and in that case no damage to that wall would have ensued. Not only did the defendant take an action in regard to her land which, though she was legally entitled to take it, caused damage to the plaintiff but the defendant took advantage of the fact that her husband was at the time the Chairman of the Municipal Board in order to get this drain altered in its course for the private advantage of the defendant. Under these circumstances we consider that the equitable order of this Court will be that the parties should pay their own costs in all Courts.