BAURIBANDHU PATRA Vs. SAGAR MALLA

JUDGEMENT

(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,