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Ramakrishna Ayyar Vs. Ramanatha Pattar and ors. - Court Judgment

LegalCrystal Citation
Subject civil
CourtChennai
Decided On
Reported inAIR1929Mad819; 122Ind.Cas.497
AppellantRamakrishna Ayyar
RespondentRamanatha Pattar and ors.
Cases ReferredNachiparayan v. Narayana Goundan
Excerpt:
.....complained of by the plaintiff and his ancestors, any court which had to deal with the subject might, and indeed ought to, refer such a long enjoyment to a legal origin, and, under the circumstances which have boon indicated, to presume a grant or an agreement between those who were owners of the plaintiff's mahal and the defendant's land by which the right was created. narayana goundan (1920)39mlj574 .in that case the learned judges found that the plaintiff had not enjoyed the right of way for four years before the institution of the suit, being effectively prevented from doing so by the defendant, and they held that the plaintiff's suit failed by virtue of the provisions of section 15, basements act. 11. in this view, we think that the learned district judge, who dealt with this..........doing anything which would interfere with the right of support which the plaintiff claims. the learned district judge of south malabar recorded the following finding:i agree with the findings of the learned district munsif that both the wall and the house (plaintiff's house) are old and the roof must have rested on this wall for more than 20 years...it is not necessary for a person claiming an easement specifically to prove that there was no permission from the owner. it is sufficient if he proves user for more than '20 years. i find that the plaintiff has acquired an easement to rest his roof upon the wall in question.2. he accordingly granted an injunction preventing the defendant from in any way interfering with the plaintiff's easement right to rest his roof upon the plaint wall,.....
Judgment:

1. The plaintiff is the appellant in this appeal. The plaintiff and defendant 1 are the owners of the adjoining premises, the plain-tiff's premises being to the west of: defendant 1's. A wall running north to the south separates the plaintiff's from the defendant's, and the same belongs to defendant 1. The roof of the plaintiff's house has been resting on this wall. The defendant tried to pull down that wall, and the plaintiff instituted the suit which gave rise to this appeal for a declaration of his right to have the roof of his house rested on the wall and for an injunction to restrain the defendant from doing anything which would interfere with the right of support which the plaintiff claims. The learned District Judge of South Malabar recorded the following finding:

I agree with the findings of the learned District Munsif that both the wall and the house (plaintiff's house) are old and the roof must have rested on this wall for more than 20 years...it is not necessary for a person claiming an easement specifically to prove that there was no permission from the owner. It is sufficient if he proves user for more than '20 years. I find that the plaintiff has acquired an easement to rest his roof upon the wall in question.

2. He accordingly granted an injunction preventing the defendant from in any way interfering with the plaintiff's easement right to rest his roof upon the plaint wall, and that so long as the defendant does not interfere with the plaintiff's roof, the defendant will be at liberty to alter or re-construct the wall as much as ho pleases.

3. Defendant 1 (who is the owner of the wall and is the only contesting defendant) preferred a second appeal to the High Court, and a learned Judge of this Court, being of opinion that the District Judge had not considered all the evidence in the case, called for fresh findings which were submitted by another District Judge and on receipt of the same reversed the District Judge's decision and dismissed the suit. The plaintiff has preferred this Letters Patent Appeal.

4. It is clear that the roof of the plaintiff's house must have been resting on the wall in question for more than 20 years. In the findings submitted by the second District Judge this is what he says:

The plaintiff's house is so old that the. second witness, aged about 48 years, who was living in the house to the east of it could not say when it was constructed. The roof on that side must have been resting on that wall ever since the house was built.

5. This is what really the District Munsif as well as the District Judge found in their judgments, for the first District Judge had already observed in his judgment as follows:

I agree with the finding of the learned District Munsif that both the wall and. the house are old and the roof must have rested on this wall for more than 20 years.

6. The question for consideration is whether on such a finding the plaintiff is entitled to the right of support for his roof on the defendant's wall. We will assume for this purpose that the plaintiff's joint, family took a lease of the defendant's, premises including the suit wall in 1914 from defendant 1, and that by virtue of the decree in suit No. 401 of 1917, defendant 1 got back possession of the same in execution of that decree; but that does not disentitle the plaintiff to have the right, of support claimed by him declared in this suit, if it be proved that the plaintiff's house enjoyed that right ever since it was built and for much more than 20 years. As observed by Sadasiva Ayyar, J., in Muthu Goundan v. Anantha Goundan [1916] 29 M.L.J. 685:

Section 15, Easements Act, does not interfere with other titles and modes of acquisitions and therefore where a party proves that he has been enjoying a right of way for a long series of years, he acquires a right thereto independently of the statute and the limitation prescribed by Section 15 would have no application to such a case.

7. The decision of the Privy Council in the case reported in Rajroop Koer v. Abdul Hossein [1881] 6 Cal. 394, supports this position. At p. 404. Their Lordships say:

This being an artificial pain constructed on the land of another man at the distant period found by the Courts, and enjoyed ever since, or at least down to the time of the obstruction complained of by the plaintiff and his ancestors, any Court which had to deal with the subject might, and indeed ought to, refer such a long enjoyment to a legal origin, and, under the circumstances which have boon indicated, to presume a grant or an agreement between those who were owners of the plaintiff's mahal and the defendant's land by which the right was created. That being so, the plaintiff does not require the aid of the statute; and his right, therefore, is not in any degree interfered with by the provision in Section 27, upon which the Munsif decided.

8. The evidence in the case before the Privy Council was that the 'pain' was constructed by the ancestors of the plain-till a great many years ago, possibly 50 or 60 years certainly more than 20 years: see p. 396. The findings arrived at in the present case by the District Munsif and the two learned District Judges who had to consider the matter are also substantially to the same effect, namely that the roof of the plaintiff's house has been resting on the wall in question ever since the plaintiff's house was built and that it must have been many years ago, and certainly more than 20 years. It was therefore quite open to the learned District Judge who dealt with the appeal on the first occasion to :

find that the plaintiff has acquired an easement to rest his roof upon the wall in question.

9. The learned Counsel for defendant 1 (respondent) relied on the decisions of Abdur Rahim and Oldfield, J., reported in Nachiparayan v. Narayana Goundan : (1920)39MLJ574 . In that case the learned Judges found that the plaintiff had not enjoyed the right of way for four years before the institution of the suit, being effectively prevented from doing so by the defendant, and they held that the plaintiff's suit failed by virtue of the provisions of Section 15, Basements Act. The learned Judges did not consider whether the plaintiff in that case had acquired any right irrespective of the provisions of Section 15 of the Act. At p. 577 they observed as follows:

It was also suggested by the learned vakil for the appellant that his client had an immemorial right and that in the circumstances a lost grant ought to have been presumed in his favour.

10. But the Court declined to allow that question to be raised since it was not properly raised in the lower Court. In the case before us the plaintiff in para. 8 of his plaint, as we read it, set up a right of easement by user for 20 years, and in para. 10 he seems to us to have pleaded that by user 'for many years past' he has acquired the right of support claimed by him. The evidence of his second witness is, as mentioned by the District Judge, that:

the plaintiff's house is so old that the second witness aged about 48 years living in the house to the east of it could not say when if; was constructed. The roof on that side of the wall must have been resting ever since the house was built.

11. In this view, we think that the learned District Judge, who dealt with this appeal on the first occasion, was perfectly justified in law in finding : 'that both the wall and the house are old and the roof must have rested on this wall for more than 20 years...' and that:

the plaintiff has acquired an easement to rest his roof upon the wall in question.

12. We accordingly allow this Letters Patent Appeal and restore the decree of the District Judge, dated 30th September 1921. The plaintiff set up false allegations that his father and brother (defendants 2 and 3) colluded with defendant 1 in the conduct of suit No 401 of 1917. There is absolutely nothing to justify that allegation of the plaintiff.

13. As regards costs, we think that the proper order to pass in the case in the circumstances in that each party should bear his costs in all the Courts, and we direct accordingly.


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