1. This appeal arises out of a suit for permanent injunction directing the defendant to construct a wall CG of the disputed room CEFG as shown in the plaint map upto the height of 7 ft. with a roof thereon with an alternative prayer that in case in the opinion of the Court the defendant could not be directed to construct the wall and the roof thereon the plaintiff might be allowed to carry out hose constructions with a Duchhntti and a room on it which existed on the roof of the defendant from more than 20 years before the demolition of the disputed wall. The plaintiff further prayed that defendant be restrained by means of permanent injunction from making a wall in front of a Roshandan of the plaintiff which was in the first door of his house. The case of the plaintiff in brief was that the plaintiff owned a house ABCD in the sketch map attached with the plaint excluding the room shown as CEFG in the house which belonged to the defendant. Over this room the plaintiff had a Duchhatti and over the Duchhatti there was a room of the plaintiff in the first door. His case was that the room of the defendant was 7 ft. long and 7 ft. high and over this room of the defendant there was a Duchhatti of the plaintiff and over the Duchhiitti stood his room in the first floor. He used to enjoy the vertical support of the defendant's wall for the purposes of his Duchhatti and the room over it. It was said that in the rains of 1958 the western and southern wall of the defendant's room fell down with the result that the roof of the defendant's room along with the Duchhatti and the plaintiff's room in the first floor came down which caused loss to the plaintiff.
2. It was alleged that in spite of request the defendant did not construct the wall of the roof of his room which had fallen down with the result that the plaintiff was unable to enjoy the use of the Duchhatti and room above it. It was further said that the defendant was intending to make a wall adjacent to the Roshandan of the plaintiff shown by letter X in the map attached with the plaint as such the plaintiff filed the present suit praying for the relief already mentioned above.
3. The suit of the plaintiff was resisted by the defendant on the allegation that his room was 11 ft. high and not 7 ft. as alleged in the plaint. The defendant denied the existence of the Duchhatti or the room over it. He asserted that the room of his had fallen down 18 years or 20 years before the institution of the suit and that the plaintiff had no right of support and even if he had any that was lost by lapse of time. The defendant disputed the right of the plaintiff for directing the defendant to make the constructions as prayed for by the plaintiff. It was said that the Roshandan at X was in the joint wall of the parties and the plaintiff had no right to claim injunction in respect of the Roshandan aforesaid.
4. The trial Court framed relevant issues on the pleadings of the parties. It accepted the plaintiff's case and decreed the suit of the plaintiff for injunction as prayed for by him. But it directed that the constructions would be made at the first instance by the defendant within a period of two months from the date of decree at the expense of the plaintiff and in case the defendant failed to carry out the constructions aforesaid the plaintiff would be entitled to get it done through Court at his own expense. The defendant was further restrained permanently from making any wall or room in front of or adjacent to Roshandan as shown in the plaint map.
5. The defendant preferred an appeal which was heard by the Additional District Judge. Saharanpur. The learned Judge affirmed the decision of the trial Court on all points and dismissed the appeal with costs. The defendant has come up in appeal to this Court and the learned counsel for the appellant has put forth the following points for the consideration of this Court:
(1) The dominant heritage having been completely demolished section 45 of the Easements Act applies and there is extinguishment of the easement claimed by the plaintiff.
(2) section 51 of the Easements Act regarding the revival of easements does not apply in the circumstances of this case for this case is not covered by any of the clauses mentioned therein.
(3) section 24 of the Easements Act applies only so long as the right exists, that is, till the dominant heritage is not destroyed.
(4) Section 25 of the Easements Act did not apply to the facts of this case for there was no question of any repair to a wall.
(5) The Court has no power to revive easements beyond section 51 of the Easements Act.
(6) There is no law by which the defendant could be compelled to make any construction upon his land as such the order of the courts below is erroneous in law.
6. The learned counsel has cited Venkatapathiraju v. Subbaraju, AIR 1930 Mad 789 and Fidaali Mulla Kurbanalli v. Akbaralli Kadarbhai. AIR 1939 Bom 210 in support of his submissions.
7. It is not disputed that the house of the plaintiff and the defendant at one time belonged to one person. Afterwards they were separately transferred to the parties by different sale deeds. The plaintiff owned the entire house as shown by the letters ABCD in the map attached with the plaint excluding the room shown as CEFG. Over this room CEFG was the Duchhatti of the plaintiff and over the Duchhatti stood his room. It is on the falling down of this Duchhatti and the room of the plaintiff that the present suit had been instituted and we have to see as to whether the claim of the plaintiff for the relief prayed for is sustainable in law.
8. In order to appreciate the controversy between the parties it is necessary to notice certain sections of the Indian Easements Act. Section 13 of the Act deals with the question of easements of necessity and quasi easements which may arise when property formerly in joint ownership is transferred to different persons as is the case here and it provided that.
9. Where a partition is made of the joint property of several persons:—
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement;
then illustration (m) is important which reads as follows:
(m) Owing to the partition of joint property. A becomes the owner of an tipper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of versicle support from B's portion as is essential for the safety of the upper room.
10. This provision would clearly show that on the findings of fact recorded by the two courts below the plaintiff was entitled to a right of support. Then it will be useful to notice section 24 of the Easements Act and illustration (f) appended to if which are as follows:
24. The dominant owner is entitled, as against the servient owner, to do all arts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as without detriment to the dominant owner, to cause the servent owner as little inconvenience as possible, and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
11. Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.
(f) A has an easement of support from B's wall. The wall gives way. A may enter upon B's land and repair the wall
12. This section 24 of the Easements Act is followed by section 25 which is in the following terms:
25. The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner.
13. Then it is followed by section 27 which reads as follows:
27. The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement but he must not do any act tending to restrict the easement, or to render its exercise less convenient.
14. Now before taking up the submissions of the learned counsel for the appellant it is necessary to notice the two remaining sections referred to in his arguments. They are sections 45 and 51 which are as follows:
45. An easement is extinguished when either the dominant or the servient heritage is completely destroyed.
51. An easement extinguished under section 45 revives (a) when the destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion; (b) when the destroyed heritage is servient building, and, before twenty years have expired, such building is rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and, before twenty years have expired, such building is rebuilt upon the same site, and in such a manner as not to impose a greater burden on the servient heritage.
15. An casement extinguished under section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent Court. A necessary easement extinguished upper the same section revives when the unity of ownership ceases from any other cause.
16. A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.
17. A resume of these sections would show that the plaintiff had a right of vertical support from the walls of the defendant's room. Now it has to be considered as to whether this right of his has been lost on account of the falling of the western and the southern walls of the defendant's room. In my opinion that right subsists and is not lost. The argument of the learned counsel for the appellant loses sight of the facts of the case. Before we can apply section 45 of the Easements Act there must be a finding to the effect that there is a complete destruction of the dominant or servient heritage. This is not the case here. Dominant heritage in tins case is the house ABCD of which the room standing on the defendant's room CEFG is a part. It cannot be said in this case that there was a complete destruction of the dominant heritage and on the facts of this case and admission of the defendant it is also proved that there is neither complete destruction of servient heritage also.
18. Therefore there is no question of the applicability of section 45 of the Easements Act. Consequently it is not necessary to notice section 51 of the Easements Act which deals with the revival of the extinguished easements under section 45 of the Easements Act. Since I have found above that there is no complete extinction of either the dominant heritage or the servient heritage sections 24 and 25 come in play and in my opinion illustration (1) of section 24 of the Easements Act clearly applies to the facts of this case and the plaintiff was entitled to get the fallen wall constructed at his own expense. This disposes of the first four points raised by the learned counsel.
19. So far as point No. 5 is concerned I have already held that section 45 of the Easements Act does not apply to the facts of this case. Consequently there is no question of any revival under section 51 of the Easements Act.
20. The sixth and the last point raised by the learned counsel also has no force. For this case the defendant has only been directed to make the constructions at the expense of the plaintiff. This direction is made for his benefit. It is only when he fails to perform the act which is to his benefit that the plaintiff has been directed to get it done at his (Plaintiff's) own expense in order to enjoy the subsisting right of his. I am of opinion that the court was fully justified in making the direction made by it which is in conformity with the law and the various sections already noted above.
21. The two authorities cited by the learned counsel for the appellant in my opinion are not of any help to him. On the other hand AIR 1939 Bom 210 clearly supports the order passed by the trial court which has been confirmed by the first appellate court and is being confirmed by this Court. In view of what has been said above this appeal lacks force and is hereby dismissed with costs.
CJ/NR/G.G.M
22. Appeal dismissed.