RASIKLAL MANILAL BHATT Vs. SAVAILAL HARGOVINDAS SUR
LAWS(BOM)-1954-9-5
HIGH COURT OF BOMBAY
Decided on September 20,1954

RASIKLAL MANILAL BHATT Appellant
VERSUS
SAVAILAL HARGOVINDAS SUR Respondents


Referred Judgements :-

DALTON V. ANGUS [REFERRED TO]
TAMLUK TRADING AND MANUFACTURING CO LTD VS. NABADWIPCHANDRA NANDI [REFERRED TO]
BENGAL PROVINCIAL BY CO LTD VS. RAJANI KANTA DE [REFERRED TO]



Cited Judgements :-

KADARBHAI MAHOMADBHAI VS. HARIBHAI RANCHHODBHAI DESAI [LAWS(GJH)-1972-4-8] [REFERRED]
RAMGOPAL VS. GOPIKRISHNA [LAWS(MPH)-1957-2-22] [REFERRED TO]
PANCHANAN MONDAL VS. SULATA ROY MONDAL [LAWS(CAL)-1980-6-12] [REFERRED TO]
NARAYANAN VS. SANKARAN [LAWS(KER)-1971-6-31] [REFERRED TO]


JUDGEMENT

- (1.)This is an appeal by defendant No. 1 and it raises a short question as to the plaintiff's right to receive lateral support to the wall on his land from the adjoining land of the defendant. Both the Courts below have granted a mandatory injunction to the plaintiff because they came to the conclusion that the wall belonging to the plaintiff was entitled to receive lateral support from the defendant's adjoining wall and that the ditch which had been recently dug by defendant No. 1 on his land had materially affected this lateral support.
(2.)The property in question is situated at Rajpipla. The plaintiff owns a 'wada' to the south of which is a public gutter and to the south of the gutter is another residential house of the plaintiff. The defendant owns his 'wada' to the north of the plaintiff's 'wada' and he too owns a residential house. In about 1945, the plaintiff built the house in question with its northern wall constructed on the extreme northern limit of his 'wada.' In the present suit he alleged that beyond his wall the defendant had dug a ditch in 1946-47 and this ditch had diminished and materially affected the lateral support which his wall was entitled to receive from the land belonging to the defendant. That is the basis on which he claimed a mandatory injunction against the defendant calling upon him not to use the ditch and to close it at his cost. It is this injunction which has been given by the Courts below. Both the Courts have found that the right which the plaintiff claims, and which in their opinion has been materially affected by the digging of the ditch, was a natural right available to the plaintiff in respect of his wall, and since this right had been impaired the plaintiff was entitled to the injunction.
(3.)It is common ground that the defendant's land is on a higher level than the plaintiff's land and there is no dispute that the plaintiff's land, unburdened and in its natural state, would be entitled to vertical and lateral support by the subjacent and adjacent strata of the land belonging to the defendant. This position is not in doubt at all. Section 7, Sub-clause (b), Indian Easements Act deals with the right of every owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation; and ill. (e) to this sub-section deals with this right; the right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person. That is why I have just stated that the right of the plaintiff's land, which is on a lower level, to receive support naturally from the subjacent and adjacent soil of the defendant is not, and cannot be, disputed. But the question is whether this right, which is regarded as a part of the natural rights of ownership, is available to a structure on open land. In the plaint it is not alleged that, by the ditch which has been dug by the defendant, the right vesting in the unburdened and natural land of the plaintiff to receive support from the defendant's land has been impaired or diminished. The sole basis of the plaint is that the wall which has been built by the plaintiff on the extreme north of his land is entitled to receive support from the adjoining plot of the defendant, and it is this right of the wall to receive support that has been impaired and diminished. The Explanation to ill. (e) under Section 7(b), Indian Easements Act is relevant on this point. This Explanation shows that land is in its natural condition when it is not excavated and not subjected to artificial pressure, and that the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition. In other words, the effect of the illustration read in the light of the Explanation is that the right which is referred to in Section 7(b) is applicable only to the land in its unburdened and natural state: it is not applicable to the structure built on the land. That is not to say that a similar right cannot he acquired by such structure. But it is not a natural right, and if the structure intends to claim such a right, it would be only by a process of prescription. If on his land the plaintiff had built his structure and the structure had stood for the statutory period of twenty years, then it may have been open to the plaintiff to allege that the right to receive support from the adjoining plot of the defendant had been acquired by the plaintiff's wall by prescription, and if in such a case the said right had been impaired or diminished, the plaintiff may have had a cause of action. But it is not even alleged in the plaint that the wall has acquired such a right by prescription. Indeed, on the allegations made in the plaint and on the evidence adduced in this case, it does not appear to be in doubt that the wall in question was built in 1945 and therefore there can be no question of prescriptive acquisition of the right in respect of the wail. Therefore, in my opinion, looking at Section 7(b) and ill. (e) and the Explanation appended to it, it is difficult to accept the conclusion of the Courts below that, because the plaintiff's land in its unburdened and natural state was entitled to receive support from the defendant's land, the same right can be claimed by the wall which the plaintiff had built.


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