K. Ahmad, C.J.
1. The question that falls for consideration in this case is whether, if the right claimed by the plaintiff has not ripened into one of easement, his action can be founded in tort for nuisance. The admitted facts of the case are that the parties to the litigation are next door neighbours. The house of the plaintiff stands on plot No. 123 and he has a boundary wall on plot No. 121 and No. 122. Just on the west of his house is plot No. 106 of the defendants. In between these properties of the parties there is a boundary wall of the plaintiff on the extreme western end of his property. The lower appellate Court has found as a fact that on 21-8-57 the defendants on the extreme end of their property on the eastern side dug a ditch 30' x 3 1/2 x 1 1/2', and this finding is now concluded in second appeal. It however appears that the two, courts below have very sharply differed on the question of law involved in the present case. The trial Court took the view that as the claim made by the plaintiff was not based on any right of easement or prescriptive right, the suit as constituted was not maintainable. This view has been reversed by the lower appellate Court.
The lower appellate Court has held that though the plaintiff has not based his claim on easement or prescription, the action as brought by him can be supported on the ground of nuisance in tort. In the result though the suit at the trial was dismissed, it now stands decreed by the lower appellate Court. The claim of the plaintiff is that as a result of the digging of their own land by the defendants just by the side of his boundary wall a portion of the boundary wall has fallen down and the main building standing on plot No. 128 has also cracked at several places. Accordingly he has claimed a sum of Rs. 500 as damages from the defendants. The lower appellate Court in decreeing the suit has assessed the damages at Rs. 300.
2. Now in appeal before me none of the findings of facts as given by the lower appellate Court has been challenged on behalf of the defendants, and the entire argument advanced on their behalf has been confined to the question of law alone. The submission made by the learned counsel appearing for the defendants is that the court below in relying on the quotation from the Law of Torts by R. L. Ananda and Sastri has erred in not appreciating that the law as stated therein relates to a condition where the land is in its natural state and is not encumbered or burdened by any structure or building. Therefore, in a case as the one here where the land of the plaintiff was burdened by the structures, the rule of law as laid down in those quotations will have no application. In my opinion, this submission made by the learned counsel for the defendants is both on principle and authority correct. In the present case both the Courts below have proceeded on the footing that the plaintiff has not acquired any right of easement or prescription in respect of the lateral support from the lands of the defendants, nor has he founded his claim on the basis of any easement or prescription. As such the action of the plaintiff can at best be supported only on the ground of natural right of property. In that regard it has been rightly stated by Brindaban Katiar in his Law of Easement and License that,
'A man in exercise of his rights to property can build even to the very extremity of his land and his neighbour has no cause for complaint. . . . . . . If his neighbour also in exercise of his natural right of property digs to the very extremity of his land and his building slips into pit, he has only to thank himself.'
But the difficulty in the present case for the plaintiff is that his land, as it now stands, is not in its natural state, but is burdened by the boundary wall and also by the building. Therefore the natural right of property as enunciated above in the aforesaid passage of Law of Easement and License by Brindaban Katiar can have no application to his case. The plaintiff can therefore succeed only if he establishes that the additional burden that has been thrown on his land as a result of the construction of the building and the boundary wall thereon has been in existence for more than 20 years and as a result thereof he has acquired by now a right of easement or a prescriptive right. Unfortunately, that is not the case either set up or pleaded by him in the plaint. Therefore on the facts of this case the claim made in the plaint cannot succeed. The leading authority on the subject is the case of Dalton v. Henry Angus and Co; (1881) 6 AC 740. This has been uniformly followed by the courts in India as is evident from the decisions in Gopalkrishna Panicker v. Thirunakkara Devaswom, AIR 1959 Kerala 202, Rasiklal v. Savai Lal, (s) AIR 1955 Bom 285, Ramgopal v. Gopikrishna AIR 1957 M. P. 227 ; Abdul Raheman v. Mulchand AIR 1928 Nag 91 (1), and In re Athi Ayyar, AIR 1921 Mad 322. Therefore, in my opinion, the court below in taking the view that it is a case which can be founded on tort for nuisance has erred in law. Accordingly the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial court are restored. But as the appeal has been heard ex parte in this Court, there will be no order for costs.