- (1.) THIS is a plaintiff's appeal and arises out of a suit for the recovery of Rs. 684/- as damages against the defendant. The plaintiff's case was that he had a three stored house adjoining the defendant's house and that in September, 1943, the defendant dug a cellar in his house in such a way that the foundations of the plaintiff's adjoining wall were exposed and the earth under it sank and the wall also went down for want of support and cracked upto the third storey. The arches were also cracked in all the floors due to the sinking of the foundations and had to be shored up to prevent their tumbling down. The defendant pleaded that his cellar was an old one and he had simply repaired it recently. He denied that any damage was done to the plaintiff 's wall and other parts of his building on account of the seller of the defendant, on the pleading of the parties the first court framed the following issues: - (1) Whether the defendant Sedhu got constructed an under-ground cell in his house with such negligence that the plaintiff's house got cracks at many places and breaks at others? (2) In case the issue No. 2 be decided in favour of the plaintiff what damage he can claim from the defendant? (3) Whether there is non joinder of parties? (4) Whether this suit is not maintainable as the plaintiff had not spent any money and that he has claimed damages on the basis of estimate and hence this suit is without any cause of action? (5) What shall be the relief. On the first issue the learned Munsif held that the construction work had been negligently handled, that the walls were plastered and a new roof was put and that every thing was done secretly and negligently without informing the plaintiff and without taking precautions against damage to his house. On this finding, the suit was decreed for the recovery of Rs. 724/ -.
(2.) THE defendant went in appeal and the learned District Judge, found that the plaintiff has not come to court with a case that he had acquired any right of support to his building by prescription. He has held that right of support from neighbour's land is available only in respect of land in unburdened and natural state; but when building has been constructed on land, there is no right of support unless it has been acquired by easement. According to him there was neither any pleading nor any evidence to show that the plaintiff had acquired a, prescriptive right of support to his building from the defendant's house or land or that the defendant had caused any damage to the plaintiff's house by negligence. He reversed the decree of the first court and dismissed the suit. THE plaintiff has come in second appeal against this appellate decree of the learned District Judge. I have heard Mr. C. L. Agarwal on behalf of the appellant and Mr. R. K. Rastogi on behalf of the defendant respondent. I quite agree with the learned District Judge that when a building has been constructed on land, there is no right of support unless it has been acquired by easement and that the natural right of support from neighbour's land is available only in respect of land in unburdened and natural state. The learned District Judge has relied upon the rulings in the cases of Bhagwan Das vs. Bibi Iqbail Sultan Banu Shahar Khurshed Begum (1) (AIR 1929 Allbd. , 885), Bengal Provincial Ry. Co , Ltd. vs. Rajani Kanta De and others (2) (AIR 1929 Allbd. , 885 ). In re Athi Ayyar (3) (AIR 1921 Mad. 322) and Fidaalli Mulla Kurbanalli vs. Akbaralli Kadarbhai (4) (AIR 1939 Bom. 210 ). Learned counsel for the respondent has produced these rulings before me and I have gone through them. It was held in the case of Bhagwan Das vs. Bibi Iqcail Sultan Banu Shahar Khurshed Begam (1), that "sec. 7 Illustration, (a) applies to cases where the land is in natural condition and does not apply to land burdened with a building and there is artificial pressure by the building itself. In such cases sec. 7 does not apply and the question of easement can be decided by applying sec. 15. " In the Calcutta ruling cited above, it was held that "an owner is entitled to use his land in any way he pleases if he does not act in a negligent manner. If there is no negligence on his part, when a lawful act is done on his own property causing damage to his neighbour, the law would give the neighbour no relief. " It has further been held that "the natural right of support from neighbour's land is available only in respect of land in unburdened and natural state. An owner has got 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 the lateral support of his building on his neighbour's land, the neighbour is within his rights to make excavations on his own land and provided that he does not act negligently he is not liable at all for damages caused to the building of his neighbour. " In the Madras case, it was held that "the right to lateral support from an adjacent land belonging to other is a right which can only be acquired by prescription for the required number of 20 years in respect of land in the state in which it has been throughout the period. " In the Bombay ruling it was held that "the right of support claimed by the owner of first floor is not natural right because one cannot have a natural right of support for something, which itself has no natural existence. " The principle emerges from these authorities that if the owner of a land burdens it with a building, he has got no right of natural support from the land of neighbour. It is only for the land in its natural state that such a right of support can be claimed from the neighbouring land. When the land has been burdened with a building, then the right of support can be claimed only if it has been acquired by prescription for over twenty years. In the present case, there is no allegation in the plaint that the plaintiff had acquired such right to support by prescription for over twenty years; rather it has been stated therein that the house of the plaintiff was new. If the plaintiff meant that he had acquired a right of support by prescription, it was his duty to have mentioned in the plaint prescription for over twenty years. This he has not said. As a matter of fact there is nothing in the plaint to show what right the plaintiff had to come to court for claiming damages against the defendant and if the lower courts had been more vigilents, probably the plaint would have been rejected on the ground that it disclosed no cause of action. However the case was allowed to proceed and it was only by the lower appellate court that it was discovered that the plaintiff had no right to bring the suit as he had no right of natural support for his building and he had not alleged in his plaint that he had got a prescriptive right of support. For a party who comes on the ground of easement, it is necessary that he should state in the pleading that there exsists a right of easement in favour of the party claiming it and it should further be shown as to in what manner the right of easement has been acquired. If it is right by prescription, it should be clearly stated. If it is an easement of necessity, it should be clearly mentioned. Mr. Agarwal on behalf of the appellant frankly stated that under the circumstances of the case, the plaintiff had no right of natural support under sec. 7 of the Easement Act. He however said that it was duty of the first court to have elicited from the parties by examining under Order 10, Rule 1 or otherwise as to on what right the plaintiff is talking his stand. I do not think it was necessary under the circumstance of the case, for the lower courts to make out a case for the plaintiff. It was for the plaintiff to say clearly in his plaint under what right, he was claiming damages. In civil cases, it is the duty of parties themselves to come to court with a clear case and to esta-blish their case by evidence. It is not for the court either to make out a case for the plaintiff or to allow them opportunity to produce evidence which on the pleadings they are not entitled to produce. Mr. Agarwal submitted that it was fit case in which leniency should be shown to the plaintiff as the fault did not lie with the party but with the learned council who drafted the plaint and conducted the case. In the first instance, it would be very improper if after a case has reached the stage of second appeal to show any leniency to a party in a civil case simply because he chose to seek the assistance of a counsel who probably did not know his job well; but in this case, I do not find that there any fault of the counsel. The plaintiff came out with a case that he had a new house which was damaged by the recent construction of the defendant. The information which was given by the parties to the counsel was embodied in the pleadings. Of course the only fault of the counsel can be said to be that he did not refuse to institute the behalf of the plaintiff in a case like the present. It was not for the counsel to make out a case for the plaintiff which in fact could not be made out on the information which the plaintiff gave to his counsel. I do not find any reason to show the leniency for which Mr. Agarwal has prayed. In my opinion the suit was rightly dismissed by the lower appellate court. The appeal is dismissed with costs to the contesting respondent. . ;