B.N. Maitra, J.
1. The plaintiffs have alleged that plaintiff No. 1 is husband of plaintiff No. 2. By a sale deed dated 18-12-1955, her husband purchased .7 decimals of land out of the plot No. 70 together with the structures standing thereon from one Bholanath Saha. Plaintiff No. 1 purchased two cottahs of land from the plot No. 73 from defendant by a kobala dated 4th July, 1959. The adjacent plot No. 71 and the remaining portion of the plot No. 73 belong to defendant and they lie to the west of the plaintiffs' land. Defendant had a small ditch on her land and there was a private passage to the east of that ditch. To the east of that ditch the plaintiffs' land is located. On that land the plaintiffs have a wall. The parties are on strained relations. With a view to causing mischief to the plaintiffs, the defendant deepened that ditch and converted it into a tank by steeply carrying out the excavation. As a result of such steep excavation, the lateral support of the plaintiffs' wall and building was lost. In the middle of Sravan, 1372 B. S., a portion of the plaintiffs' land and western portion of their wall became engulfed by the defendant's tank. The vacant space of the west of the plaintiffs' wall also subsided into the tank. The plaintiffs' request in this respect was ignored and thedefendant did not rebuild the damaged portion of the wall and reclaim the portion of the land which had subsided into the tank. The suit is for confirmation of possession on declaration of the plaintiffs' title to the disputed land and for a mandatory injunction directing the defendant to rebuild the portion of the plaintiffs' wall, which had crumbled down, and to reclaim that portion of the land, which had gone down into the tank.
2. Defendant filed a written statement denying the plaintiffs' allegations. It has been alleged inter alia that the plaintiffs had no such lateral support and the ditch was not converted into a tank. The story of the wall crumbling down and of the portion of the plaintiffs' land going down into the tank is false. No loss was caused to the plaintiffs.
3. The learned Munsif issued a writ of local investigation. The pleader commissioner reported in the plaintiffs' favour. Accepting that report and relying on the plaintiffs' version the suit was decreed. Defendant went up on appeal. The appellate court reversed the learned Munsif's findings and dismissed the suit. Hence this second appeal by the plaintiffs:
4. It has been contended on behalf of the appellants that the pleader commissioner's report and deposition clearly proved the plaintiffs' version. Reference has been made to p. 273 of Gale on Easements, 13th Edn., to show that there is no natural right to the support of a building per se. Support to that which is artificially imposed upon land cannot exist ex jure naturae because the thing supported does not itself so exist. If, however, land has been affected by the withdrawal of support and a building on it has also been affected and it is shown that the withdrawal of support would have affected the land in its natural state, in other words, that the land has been deprived of its natural right of support, damages may be recovered for the consequent injury to the building. Halsbury's Laws of England, 3rd Edn., Vol. 12, p. 606, has been referred to show that the owner of land has no natural right to support for buildings or of the additional weight which the buildings cause. Support to that which is artificially imposed upon land cannot exist ex jure naturae, because the thing supported does not itself so exist. The mere fact that there are buildings upon the land does not preclude an owner from hisright against a neighbour of subjacent owner, who acts in such a manner as to deprive the land of support, so long as the presence of the buildings does not materially affect the question, or their additional weight did not cause the subsidence, which followed the withdrawal of support. Section 7(b) of the Indian Easements Act speaks of the right of every owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation. Illustration (e) thereof says that the owner of land has the right that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person. The principles of that section apply to West Bengal. The evidence given by the P. Ws. clearly supports the plaintiffs' version of damage to the plaintiffs' land, wall and building by the defendant's action.
5. The learned Advocate appearing on behalf of the respondent has referred to the case of Ram Gopal v. Gopi Krishna, : AIR1957MP227 , where it has has been stated that there is a distinction between a natural right of support to one's land in unburdened and natural state from the adjacent and subjacent land of the neighbouring owners and the right of support for buildings or structures standing on the land. While the former right is a natural incident of one's ownership of the land, the right for the support for building or structure on land is an easement and can be claimed only as an easement. If the owner of a building has not acquired such a right of easement of lateral support for his building from his neighbour's land, the neighbour would be within his rights in carrying on excavation on his soil even if by so doing damage is caused to the building of his neighbour, provided, of course, there is no negligence in the excavation operations.
6. Both the sides referred to the leading case of Dalton v. Angus in (1881) 6 AC 740. A question arose in that case whether a building could acquire a right to lateral support from adjacent land by 20 years' uninterrupted enjoyment. It has been held that such right could be acquired by prescription. A right to receive lateral support may be acquired by building by 20 years' user openly, continuously and without interruption.
7. In the case of Bengal Provincial Ry. Co. v. Rajani Kanta AIR 1936 Cal564, the allegation was that the defendant company had burrow pits on their own land for a long time and the plaintiffs had their hut near those pits. In 1927 or 1928 they replaced their hut by a masonry building, which was raised close to the pits. In February, 1930, the defendant company deepened the pit. But at that time no damage was caused to the plaintiffs' building. After the rains had set in in July, 1930, the cracks appeared in the building. So damages were asked for from the railway company on account of damage caused to the plaintiffs' building. It has been stated that the natural right of support from neighbour's land is available only in respect of land in un-burdened and natural state. An owner has no right for the support of his building or of his land burdened with the additional weight of his building unless such a right has been acquired as an easement. If there is no easement to have such lateral support, the neighbour is within his rights to make excavation provided that he does not act negligently. If there is no negligence, the plaintiff is not entitled to any damages caused to his building.
8. In this case, the facts are almost identical because the plaintiffs have alleged that after defendant deepened the ditch, no immediate damage was caused to their land, wall or building. Only after the break of monsoon, i. e., in the middle of Sravan 1373 B. S., a portion of the plaintiffs' land and the western portion of their wall were engulfed by the tank. There is no finding by the courts below that the defendant's act was negligent. So on that score alone, the plaintiffs' are liable to be non-suited.
9. There is yet another defect. In the case of Bengal Provincial Ry. Co. v. Rajani Kanta (supra), there was no evidence that the plaintiffs' land would have subsided even if it had been in a natural state and unburdened with their building by reason of the excavation made by the defendant company. This principle was discussed in the case of Ramgopal v. Gopikrishna (supra), cited on behalf of the respondent. This case was also discussed by Gajendragadkar, J., in the case of Rashiklal v. Savailal reported in AIR 1655 Bom 285. It has been stated in that case that the effect of Illustration (e) of Section 7(b) of Easements Act is that the right, which is referred to in that section, is applicable only to the land in its unburdened and natural state.It is not applicable to the structure built on the land unless there is a case of prescription. It may be stated that though that Act does not apply to Bengal, the principles of the Act nevertheless apply.
10. Applying the principle to the facts of the case it appears that the plaintiffs made out no case that they acquired any easement right to support to their building from the defendant's land. There is no evidence on the side of the plaintiffs to show that their land would have subsided even if it had been in its natural state and unburdened with their building, by reason of the excavations made by the defendant. Due to this defect in the plaint, the prayer for mandatory injunction must be dismissed, and I find accordingly.
11. There is a mistake in the judgment of the learned Subordinate Judge because the plaintiff asked for declaration of title and confirmation of possession. The plaintiffs' title was denied in the written statement. So this portion of the decree was erroneously set aside by the learned Subordinate Judge.
12. The appeal is allowed in part. The judgment and decree appealed against be set aside. The suit is decreed in part. It is hereby declared that the plaintiffs have title to the disputed land to the extent shown by the pleader commissioner. The plaintiffs' possession in such land is hereby confirmed. The commissioner's map, report and field-book do form part of the decree. The prayer for mandatory injunction is dismissed.
13. There will be no order as to costs.