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Suresh Chandra Biswas Vs. Jogendra Nath Sen - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.854
AppellantSuresh Chandra Biswas
RespondentJogendra Nath Sen
Cases ReferredThomas v. Thomas
Excerpt:
easement - owner, whether can increase his right--burden of proof--appeal, second--expert evidence, whether can be taken. - .....land in respect of which he had an easement. the only question in controversy is, whether the right of easement exists in respect of the two-storied building by which the hat has been recently replaced.3. now, it is well settled that no man can impose a new or increased restriction or burden on his neighbour by his own act, and for this reason an owner of an easement cannot, by altering his dominant tenement, increase his right. this principle is well illustrated by the decision in harvey v. walters (1873) 8 c.p. 162 : 42 l.j.c.p. 105 : 28 l.t.343. in that case, the house in respect of which an easement was enjoyed was pulled down and was replaced by a new house three feet higher than the original one. the court held that, in these circumstances, as there was no addition to the.....
Judgment:

1. This is an appeal by the defendant in a suit instituted by the respondent for a mandatory injunction to pull down a cornice and string-course put no by him go as to overhang the plaintiff's land, upon declaration that he had no right to make such preventions.

2. The Courts below have found that the defendant had a hut on the disputed land in respect of which he had an easement. The only question in controversy is, whether the right of easement exists in respect of the two-storied building by which the hat has been recently replaced.

3. Now, it is well settled that no man can impose a new or increased restriction or burden on his neighbour by his own Act, and for this reason an owner of an easement cannot, by altering his dominant tenement, increase his right. This principle is well illustrated by the decision in Harvey v. Walters (1873) 8 C.P. 162 : 42 L.J.C.P. 105 : 28 L.T.343. In that case, the house in respect of which an easement was enjoyed was pulled down and was replaced by a new house three feet higher than the original one. The Court held that, in these circumstances, as there was no addition to the burden, the easement remained unaffected. The plaintiff there was the owner of certain premises the eaves of which projected over adjoining land of the defendants and bad become entitled by length of user to have the rainwater drop from such eaves on to the defendant's land. The plaintiff in rebuilding his premises carried the wall abutting on defendant's land to a slightly greater height than before, and raised the height of the eaves from the ground to the same extent. As there was no evidence that a greater burden was thrown on the servant tenement by the alteration, it was ruled that the easement was not thereby destroyed, and the plaintiff was entitled to the right of eavesdrop from the premises as altered. This decision followed the earlier case of Thomas v. Thomas (1835) 2 C.M. & R. 34 : 1 Gale. 61 : 5 Tyr. 804 : 4 L.J. (N.S.) Ex. 179 : 156 E.R. 15 : 41 R.R. 678.

4. In the case before us, the Subordinate Judge has carefully gone into the question and has come to the conclusion that the burden has been increased. The Subordinate Judge found that the defendant had encroached on the superincumbent portion of the plaintiff's land by making the cornice and the string-course at two places, one at a distance of 12 feet and the other of 22 feet from the ground, while the eaves of the tiled hut stood at a distance of only 8 feet from the ground and hunt; over the plaintiff's land along one line. He further pointed out that the accumulated water trickles down from the cornice from a height of 24 feet and consequently with greater force than the water which formerly same down from a height of eight feet only. On these facts, the Subordinate Judge came to a finding that the present cornice has to a certain extent created additional burden on the plaintiff's land Mr. Justice Newbould has correctly held that this finding of fact must be accepted for the purpose of the Second appeal.

5. The appellant has finally argued that expert evidence should have been taken. There is no force in this contention. The onus was upon the appellant, who claimed the easement, to prove that when the hut was replaced by a two-storied building, no additional burden was imposed upon the servant tenement; yet he never offered to give expert evidence on the subject. We are accordingly of opinion that tribe decree made by Mr. Justice Newbould must be affirmed and this appeal dismissed with costs.


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