RAO NIHALKARAN S/O R R CHHATRAKARAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioners have been convicted under Section 426, I. P. C. and have been sentenced to pay a, fine of Rs. 10/- each. They have come up in revision.

(2.) FACTS of the case are not disputed. The parties own adjoining houses. There are some windows and other apertures to let in light and air in the house of the petitioners. The non-applicant wanted to obstruct these windows and apertures and the petitioners filed a suit against them to restrain him from doing so. They got a decree in their favour directing the non-applicant not to interfere with the right of the applicants to have light and air from the windows (Ex. D/1 ). On 20-71953 the non-applicant commenced erecting a wall which was raised to the level of obstructing one of the windows. At this, the petitioners, demolished the wall. The prosecution case was that in doing so, the petitioners caused wrongful loss to the non-applicant and their act thus amounted to an offence of mischief under section 426, I. P. C.

(3.) THE first contention advanced on behalf of the petitioners is that they had a right to pull down the wall under Section 24 of the Indian Easements Act. Section 24 of that Act entitles the dominant owner to do all acts necessary to secure the full enjoyment of an easement. From the illustrations given below that section it is clear that the acts contemplated to be done by the dominant owner in this section are such acts as are necessary to secure the enjoyment of the easement proper to him. He is thus entitled to go on the land of the servicnt owner to make necessary repairs to a drain or to a way, etc. The right contemplated by this section has been called an accessory right in the section itself. The words "acts necessary to secure the full enjoyment of an easement" which occur in the first sentence of the section arc repeated in the definition of an accessory right given in the second sentence of that section. It is thus clear that Section 24 has reference to "accessory rights" only and does not give a right to remove direct obstructions wilfully placed by the servient owner. I need not however discuss the question further in view of the provisions in section 36 of the Act. That section opens with the words "notwithstanding the provisions of Section 24". It is thus clear that the provisions in that section have effect in spite of anything that may have been said in the earlier section. That section specifically provides that the dominant owner cannot himself abate a wrongful obstruction of an easement. The language is quite clear and is incapable of any other meaning. The obstruction placed by the servient owner may be wrongful. Still, the dominant owner has no right to remove it. His only remedy is to take recourse to proper proceedings to compel the servient owner to do so. The provisions in these sections are deviations from the English law under which the dominant owner has a right to remove obstructions. The fact that the petitioners had obtained a decree does not improve their position and it appears to me that Section 36 will still continue to apply. The remedy available to the dominant owner who has obtained a decree would be either to have the opposite party punished for flouting the injunction against them or to file a suit for mandatory injunction to remove the obstruction.