A.H. Khan, J.
1. The plaintiff brought a suit, alleging that the defendant had built two pakka walls 'EF' and 'FG' on the North and South of his house, as a result of which water in between the plaintiff's house and the defendant's house flows through a lane which belongs to the defendant, but it damages the walls of the plaintiff marked as 'AB' and 'AC'. The plaintiff prayed that the walls of the defendant (which defendant had built on his land) be ordered to be demolished and that he should be restrained from constructing any more wall there, and, that he be also given Rs. 100/- as compensation for damage to his wall.
2. The defendant resisted the suit. The trial Court directed the defendant to put slabs in the lane within two months of the date of the decree, and that he should further repair the wall of the plaintiff upto one yard from the bottom, plastering it with lime or else pay to the plaintiff an amount of Rs. 100/- for the purpose. On appeal by the defendant, the decree was affirmed with the variation that instead of directing the defendant to pay Rs. 100/- it reduced the amount to Rs. 50/-. This is now defendant's second appeal.
3. I am sorry to observe that the approach of both the courts below is wrong. It is admitted by the learned counsel for the plaintiff-respondent that the lane belongs to the defendant and that the two walls which have been constructed by the defendant (marked as 'EF' and 'FG') have been built on defendant's land. If water from the walls of the defendant flows on towards the wall of the plaintiff, then since the plaintiff has not acquired any easementary right, he cannot ask for the relief he has sought. Neither the order that defendant should pave his lane with slabs, nor the direction that the defendant should plaster the wall of the plaintiff has any legal justification. The defendant by building walls on his own land has not in any way violated plaintiff's right. This is a case of Damnum Sine Injuria a case where damage or loss is inflicted without the act being unlawful. It is an act though harmful to the plaintiff is not wrongful on the part of the defendant, and no right of action accrues to the plaintiff.
4. The rule of law is that the exercise of an ordinary right is no wrong even if it causes damage. A man's use of land, such as building a wall on it is an action to which he is entitled. He is at liberty to build on his land and unless the other person has a right to stop him from doing so (such as an interference with his easementary right) the inconvenience must be suffered. As a price of our free action, which the law permits, the other person must abide by some measure of inconvenience from equal freedom of one's neighbour. This is what the phrase damnum sine injuria means.
A classical illustration of this rule is reported in the Year Book of Henry IV (Hil. 11 Hen. IV 47, P1. 21 (A. D. 1410-11)). The plaintiff had a Grammar School in Gloucester, in which he charged forty pence a quarter for a child's schooling. After this school had been in existence for some time, the defendant established another Grammar School in the same town as a result of which the plaintiffs fees were reduced to twelve pence. The first School master thus suffered a loss or damages. It was held that as the second school master had a legal right to start a new school (no law prevents him from doing so) and that on the basis of damages suffered by the first School Master, no action could be maintained.
5. For reasons stated above, the appeal isallowed and the suit of the plaintiff is dismissedwith costs throughout.