Sonba v. Dattatraya

1. The defendant has filed two appeals (No. 430 and No. 431 of 1921) against different decisions in the same judgment and the plaintiff has filed a Cross-objection in the second of these two appeals. I have examined both appeals and the cross-objection in the manner appropriate to a first appeal but have been unable to find more than two points, both arising in the cross-objection, which could properly be put forward in a second appeal at all I do not propose therefore to discuss more than these two points. The first has reference to the windows of the plaintiff's house situated at the points marked and in the map filed with the plaint. It is contended that these openings have been in existence for 50 or 60 years, and therefore a right of easement has accrued in regard to them independently of section 15 of the Basements Act, 1882, although the use of that easement had been discontinued for more than two years previous to the institution of this suit. The learned pleader for the plaintiff urged that continuous user of that extent was of itself presumptive evidence of a grant or agreement so that what is practically a period of limitation of two years prescribed by section 15 of the Easements Act in respect of an easement acquired by prescription only, does not apply here as was held by their Lordships of the Privy Council in Bajrup Koer v. Abdul Hossein [1881] 6 Cal. 394 , 7 C.L.R 529 , 4 Sar. 199 , 7 I.A 240 (P.C).

2. In support, of this suggestion the learned pleader cited the case of Moore v. Rawson, mentiond at page 71 of Peacock's Easements in British India, where the relevant part of the judgment of Littledale, J. is quoted.

3. The principle stated there was that continuous peaceable user of an easement of light and air for more than twenty years gave rise in England to a presumption that it existed with the consent of the owner of the sarvent heritage. This principle was applied by the Bombay High Court in Pranjivandas v. Mayaram Bagram v. Khettranath Karformah(2). These cases however were decided in 1862 and 1869, that is to say many years before the passing of the Easement Act. Long user may certainly with other circumstances, and in some cases even by itself, be good evidence of an agreement or grant. The finding of the lower appellate Court as to the length of the user is however not very clear. The learned Judge in one place seems to find as a result of his own observation that the window 37 at least was built with the house, which was 50 or 60 years old. On the evidence given in Court his finding seems to be that the window was built not more than ten years ago. But even its existence for 60 years could not by itself be held to prove, in the circumstances of this case, that there had ever been an agreement, tacit or otherwise, that the defendant would not interfere with the enjoyment of light and air through it at any time.

4. The other point raised refers to the encroachment by the defendant on the plaintiff's property by building a portion of his own wall on the top of the plaintiffs wall at the point marked in the map. The lower appellate Court deals with this point in the following manner:—“The third ground of appeal relates to the wall on plaintiffs bath-room. There is no evidence on plaintiff's side about this wall, kha The Judge of the lower Court Mr. Nene observes in his inspection note of this wall that the plaintiff's wall in question is pretty old and the damage it has received appears also to be of a pretty old time. He finds from observation that only a very small portion of it, if at all, rests on plaintiff's wall, so small that plaintiff ought not to complain about it. He says that it is most unlikely that the resting of that small portion on plaintiff's wall might have caused any damage to plaintiff's wall. Mr. Haksar in his inspection note finds that the wall seems to rest on a portion of the plaintiff's wall because the wall is not visible from the top and it is covered by the defendant's superstructure. The finding given by the lower Court in its judgment is vague. It has not defined the extent of the burden found to have been caused by the wall kha and it granted no relief in respect of it. I find that plaintiff did not prove the extent of the encroachment by reliable data and so it is not proved that the defendant in building the wall made any appreciable encroachment or caused any damage to the plaintiff. Plaintiff can get no relief in respect of this and the third ground of appeal fails.”

5. It seems to me that it was entirely unnecessary for the plaintiff to prove the extent of the encroachment or the weight of the burden it had imposed upon him. He is clearly entitled to claim that any portion however small of defendant's wall that projects on his property, that is to say to the North of the Southern surface of his own wall, shall be removed. As a result the decree of the lower appellate Court in Civil Appeal No. 141 of 1920 will be modified by addition to the list of structures ordered to be removed by the defendant of that portion of the wall at or near in the map which projects to the North beyond the Southern surface of the plaintiff's South wall; The defendant appellant will pay all the costs of both appeals and one-eighth of the total costs incurred in connection with the cross-objection of the plaintiff' respondent. The latter will pay the remaining seven eighths.