Lakshmanan, L. Radhakrishnan and L. Sivanandham vs G. Ayyasamy

G. Rajasuria, J.—These second appeals are filed by the Defendants, inveighing the judgment and decree dated dated 30.10.2006 passed by

the Second Additional Subordinate Judge, Coimbatore, in A.S. No. 106 of 2006 and in the cross appeal, reversing the judgment and decree

dated 3.1.2006 passed by the III Additional District Munsif, Coimbatore, in O.S. No. 611 of 2002, which was filed seeking permanent and

mandatory injunction.

The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these second appeals would run thus:

(a) The Respondent herein, as Plaintiff, has filed the suit seeking the following reliefs:

to pass a judgment and decree against the Defendant;

a) Restraining the Defendants, their men, agents, servants in anyway disturbing the peaceful possession and enjoyment of the suit property by the

Plaintiff encroaching or any manner by means of permanent injunction.

b) directing the Defendants to remove the three windows and the eaves of the tiled roof projection towards the suit property situated in the eaves

of the tiled roof projection towards the suit property situated in the North South Wall in the eastern boundary of the suit property by means of

mandatory injunction..

(extracted as such)

(b) The Defendants resisted the suit by filing written statement along with the counter claim making the following claims:

to declare the Defendants'' easementary right of access over the eastern vacant site of the suit property for white washing, repairing and maintaining

their western ""AB"" wall described in the schedule and consequential permanent injunction restraining the Plaintiff from in any way interfering with

their right of entry into the eastern vacant site of the suit property for the purposes of white washing, repairing and maintaining ''AB"" wall:

to declare the Defendants'' easementary right of projection of eaves of their western tiled roof into the suit property and consequential permanent

injunction restraining the Plaintiff from cutting down the projecting eaves and draining rain water falling therefrom into the suit property;

to direct the Plaintiff to pay the costs of counter claim.

(c) Whereupon the trial Court framed the issues. The Plaintiff on his side examined himself as P.W.1 along with P.W.2 and P.W.3 and marked

Ex.A1 to A13. On the Defendants'' side, the second Defendant examined himself as D.W.1 along with D.W.2 and D.W.3 and and marked

Exs.B1 to B15. Exs.C1 and C2 were marked as Court documents.

(d) The trial Court dismissed the suit as well as the counter claim, however, granted the reliefs in favour of both to the effect that the area situated

to the Western wall of the is the common pathway for both Plaintiff and the Defendants and they should enjoy by putting up a gate at the entrance.

(e) Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the Plaintiff preferred the appeal and the Defendants filed

the cross-appeal. The appellate Court reversed the judgment and decree of the trial Court to the effect that the Defendants have no right of ingress

and egress into the suit property. However, the appellate Court allowed the aerial projection of the Defendants'' roof to continue.

Challenging and impugning the judgment and decree of the appellate Court, the Defendants preferred the second appeal on various grounds,

inter alia to the effect that the Defendants would be having no opportunity of repairing their Western side wall without entering into the suit

property.

The following substantial questions of law are found suggested in both the second appeals:

a) Whether in law is not the lower appellate Court wrong in reversing the decree and judgment of the trial Court in the absence of seeking

declaration of title.

b) Has not the lower appellate Court erred in overlooking that the Plaintiff has to prove his case and cannot succeed on the weakness of the

Defendant.

c) Has not the lower appellate Court omitted to see that the Order in Ex.A7 has become final and in the absence of challenging the same as well as

Ex.B2 sale deed by the Plaintiff, they cannot be ignored.

Heard both sides regarding the substantial question of law to be framed and accordingly, the following substantial questions of law are framed.

(i) Whether the trial Court was justified in rejecting the prayer of the Defendants in the counter claim for having the projection of the roof of the

Defendants over the suit property which belong to the Plaintiff and whether the first appellate Court was justified in reversing the said finding

relating to the aforesaid relief by ordering that such projection of the roof of the Defendants could exist, so as to enable the rain water to fall into

the suit property of the Plaintiff without the backing of the law in support of the appellate Court''s finding?

(ii) Whether the first appellate Court was right in reversing the finding of the trial Court, in the absence of any law supporting the findings of the

appellate Court, which held that the Defendants should have ingress and egress into the suit property of the Plaintiff to whitewash and repair the

wall of the Defendants?

(iii) Whether there is any perversity or illegality in the Judgments passed by both the Courts below?

Points (i) to (iii): All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one

another.

Both sides advanced arguments in this connection.

The gist and kernal of the arguments of the learned Counsel for the Appellants/Defendants would run thus:

(i) It is quite obvious and axiomatic that the Defendants are having no land belonging to them situated to the West of the Defendants main wall and

in such a case, in order to repair the said wall of the Defendants, necessarily, the Defendants have to have ingress and egress into the Plaintiff''s

property, which is a suit property and carry out repairs of the Defendants'' wall.

(ii) The appellate Court, without having any regard for this apparent factual as well as the legal position, simply dismissed the prayer of the

Defendants.

(iii) The trial Court erroneously rejected the prayer of the Defendants to have the Defendants'' roof projecting over the suit property and that right

was acquired by the Plaintiff by continuous enjoyment for over 80 years, whereas, the first appellate Court so far that relief is concerned, correctly

decided in favour of the Defendants.

(iv) The learned Counsel for the Appellants/Defendants would pray for setting aside the judgment and decree of the first appellate Court in

rejecting the prayer of the Defendants for declaring their easement right to have ingress and egress into the suit property for repairing the Western

side wall of the Defendants.

Accordingly, the learned Counsel for the Appellants/Defendants prays for allowing the second appeals.

By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the Appellants/Defendants, the learned Counsel

for the Respondent/Plaintiff would submit thus:

(i) The the Defendants are having no right of ingress and egress into the suit property, which exclusively belonged to the Plaintiff and the

Defendants cannot have their roof projecting over the suit property.

(ii) Even though no appeal has been preferred as against the first appellate Court''s judgment in granting the relief of the eaves projecting over the

suit property, in favour of the Defendants, still this Court, while comprehensively deciding these appeals, by virtue of Order 41 Rule 33 could

decide the entire lis, in the interest of justice, that the Defendants are not having any right to have eaves projecting over the suit property.

At the outset itself I recollect and call up the following maxims:

(i) Cujus Est Solum Ejus Est Usque ad coelum'' - The person who owns the soil owns up to the sky.

(ii) ''Superficies solo cedit'' - The surface goes with the land.

(iii) ''Sic Utere Tuo ut alienum non laedas'' - Use your property so as not to damage aother''s.

The owner of the property is entitled to have his right exercised up to the sky and in such a case aerial projection cannot be permitted.

I would like to refer to the relevant passages in the famous treatise ''The Law of Torts ((25th Edition 2006 page 374):

Trespass, in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a

man''s person or to his property. But the most obvious acts of trespass are - (1) trespass quare clausum fregit ""because he (the Defendant) broke

or entered into the close"" or lad of the Plaintiff; and (2) trespass de bonis asportatis, wrongful taking of goods or chattels. Here we are concerned

with the former, i.e. trespass to land.

Trespass to land is also an offence under the Indian Penal Code (s.441) provided the requisite intent is present.

To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of an enclosure is necessary. ""Every

invasion of private property, be it ever so minute, is a trespass.

Trespass may be committed (1) by entering upon the land of the Plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole

possession of the Plaintiff, in each case without justification.

(1) Entry is essential to constitute a trespass.

A man is not liable for a trespass committed involuntarily, but he is liable if the entry is intentional, even though made under a mistake, e.g., if ,in

mowing in his own land, a man inadvertently allows his blade to cut through into his neighbour''s field, heh is guilty of a trespass. Notwithstanding

the decision of Court of Appeal in Letang v. Cooper, approving Fowler v. Lanning, which lays down that intention is a necessary element to

constitutes trespass to person, it is still the law that an entry upon another''s land constitutes trespass to land whether or not the entrant knows that

he is trespassing. If the Defendant consciously enters upon a land believing it to be his own but which turns out to be of the Plaintiff, he is liable for

trespass. But a person is not liable if the entry is involuntary, e.g., when he is thrown upon the land by someone else. In such a situation, there is no

act of entry at all by the Defendant. It is also possible that the Defendant may successfully plead inevitable accident in his defence.

The presumption is that he who owns the surface of land owns all the underlying strata. So an entry, beneath the surface at whatever depth, is an

actionable trespass at the instance of the owner of surface. But it is possible that the underlying strata may be in possession of a different person,

e.g., when mining rights are held by a person who is not in possession of the surface. So if the surface of land is in possession of A and the subsoil

in possession of B, entry on the surface will be trespass against A and entry in the subsoil will be trespass against B, e.g., a tunnel dug from the

adjoining land; and in case of a vertical hole dug on the land that would be trespass both against A and B.

...

...

(3) Every interference with the land of another, e.g., throwing stones or materials over a neighbour''s land, is deemed constructive entry and

amounts to trespass. Deliberate placement of matter, e.g., jettisoning of oil, in such circumstances, as will carry it to the land of the Plaintiff by

natural forces, may constitute trespass. The matter may not be tangible; if may be gas or invisible fumes.

A trespass may be committed by driving a nail into a person''s wall, or by placing anything against his wall, or by shooting over his land, or by

placing anything above and overhanging his land, or by planting trees in his land, or placing any chattel upon his land, or causing any physical object

or noxious substance to cross the boundary of his land. But trespass of the nature described above must be distinguished from private nuisance

which resembles trespass. The distinction is important for trespass is actionable per se whereas nuisance is actionable only on proof of damage.

The distinction lies in the nature of the injury whether it is direct or consequential. If the injury is direct, it is trespass; whereas, if the injury to the

Plaintiff is consequential it is a case of nuisance. If a person throws stones on the neighbour''s land, it is trespass. If a person plants a tree on his

land the roots of which after some years undermine the foundation of the neighbour''s building, it is nuisance. Discharge of filthy water on Plaintiff''s

land from a spout in Defendant''s house is trespass.

2(B) Aerial Trespass

The owner of land is entitled to the column of air space above the surface ad infinitum. The ordinary rule of law is that whoever has got the site - is

the owner of everything up to the sky and down to the centre of the earth. An ordinary proprietor of land can cut and remove a wire placed at any

height above his land. At least in modern times, this is an overstatement. The correct view is that the owner''s right to air and space above his land

is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it. If the rule were as used to be

stated earlier, it would lead to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburbun

garden. If a man were to erect a building overhanging the land of another, he would commit trespass and an action would lie against him.

I would also like to refer to Section 15 of the Indian Easements Act, 1882, which is relating to acquisition by prescription and also Section 17,

which would contemplate that certain rights cannot be acquired by prescription:

Section 15. Acquisition by prescription - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith,

as an easement, without interruption, and for twenty years, and where support from one person''s land, or things affixed thereto, has been

peaceably received by another person''s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and

for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as

an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement,

shall be absolute.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the

claim to which such period relates is contested.

Section 17. Rights which cannot be acquired by prescription - Easements acquired u/s 15 are said to be acquired by prescription, and are called

prescriptive rights.

None of the following rights can be so acquired

(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability

would be imposed;

(b) a right to the free passage of light or air to an open space ground;

(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;

(d) a right to underground water not passing in a defined channel.

The above provisions of law and the passages extracted supra from the famous treatise on Law of Torts would amply make the point clear that

the Defendants should arrange their own roof in such a manner that the rain water falling on their roof does not flow into the suit property. There is

nothing to indicate and exemplify that the suit property is the joint property of the Plaintiff and the Defendants. In fact, from a mere perusal of the

written statement and the counter claim, it is clear that the Defendants claim only easementary right to have ingress and egress into the suit

property, which is situated to the West of the Defendants'' wall and they also pray for retaining the projection over that suit property, as an

easement only.

At this juncture, I would like to extract hereunder Section 4 of the Indian Easements Act, 1881:

Section 4. ""Easement"" defined - An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial

enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect

of, certain other land not his own.

Dominant and servient heritages and owners - The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the

owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier

thereof the servient owner.

Here the Plaintiff is the owner of the servient heritage and the Defendants are the owners of the dominant heritage.

Accordingly, if viewed it is clear that the Defendants themselves categorically and candidly, pellucidly and palpably admit that the Plaintiff is the

owner of the suit property, over which the Defendants claimed such easementary right. Without having regard to this fundamental principle of law,

the Courts below decided the lis, warranting interference in second appeal.

By virtue of Order 41 Rule 33, this Court, while dealing with the matter of this nature should necessarily rectify the error of law committed by

the Courts below. Accordingly, if viewed it is clear that the first appellate Court was wrong in its approach in holding that the Defendants could

have the eaves of the roof of the Defendants'' projecting over the suit property belonging to the Plaintiff.

At this context, I would like to refer certain excerpts from the Broom''s Legal Maxims (Tenth Edition - page Nos. 238 and 240):

Sic Utere tuo ut alienum non laedas'' - Enjoy your own property in such a manner as not to injure that of another person.

A man must enjoy his own property in such a manner as not to invade the legal rights of his neighbour:

expedit reipublicae ne sua re quis male utatur. ""Every man,"" observed Lord Truro, ""is restricted against using his property to the prejudice of

others""; and: the principle embodied in the maxim, sic utere tuo ut alienum non laedas, applies to the public in at least as full force as to

individuals....

...In trespass quare clausum fregit, the Defendant pleaded that he had land adjoining Plaintiff''s close, and upon it a hedge of thorns; that he cut the

thorns, and that they, ipso invito, fell upon the Plaintiff''s land, and the Defendant took them off as soon as he could. On demurrer, judgment was

given for the Plaintiff, on the ground that, ""though a man do a lawful thing, yet if damage thereby befalls another, he shall answer it, if he could have

avoided it

...

The following instances will serve to show in what manner the maxim placed at the head of these remarks is applied, to impose restrictions, first,

upon the enjoyment of property and secondly, upon the conduct of each individual member of the community. In illustration of the first branch of

the subject, we may observe, that, if a man build a house so close to mine that his roof overhangs mine, and throws the water off upon it, this is a

nuisance, for which an action lies....

As such, necessarily, the Defendants should remove their roof''s projection over the suit property in such a manner that it is not projecting over

the suit property of the Plaintiff and that the rain water falling from the Defendants roof should be arranged in such a manner that it is not falling into

the suit property and for that the Defendants have to take remedial measures and any one having civil engineering knowledge or an experienced

mason would be able to guide the Defendants to make such arrangements.

The next phase of the dispute involved in this case is as to whether the Defendants could have ingress and egress into the suit property, so as to

whitewash and repair the Defendants wall.

In this connection, the learned Counsel for the Appellants/Defendants cited the following two decisions of this Court.

(i) 1965 (2) M.L.J. 522 - L. Damodaraswami Naidu v. S.T. Damodaraswami Naidu, certain excerpts from it would run thus:

...

My attention was drawn by the learned Counsel to a recent decision of Veeraswami, J., in Kamalammal v. Chakravrthy. It was not necessary to

discuss the question because the Court in that case was not called upon to decide whether this right of access was a necessary easement that

would attach to every wall. Therein referring to Bhagavatulu Subramanya Sastri v. Bhagavatula Lakshminarasimhan, the learned Judge has

observed as follows:

In that case all that was held was that a house owner in order to repair his wall on his neighbour''s side of the premises had the right to go to the

other side of the wall on the land of his neighbour, the right being in the nature of a necessary easement.''

... In the view I take, and as the facts of the present case differ from the facts of the decision in Bhagavatula Subramanya Sastri v. Bhagavatula

Lakshminarasimhan. I prefer to follow the decision of Krishnaswami Naidu, J., and hold that the Plaintiff in this case has the right he claims to go

over the vacant space of the Defendant to carry on repairs to the exposed northern wall. It may be rested as an urban servitude customarily

enjoyed or on the facts of this case as a grant implied from the existence of the wall for over twenty years at the very extremity of the property.

...In my view as in Bhagavatula Subramanya Sastri v. Bhagavatula Lakshminarasimhan, it would be sufficient if the Plaintiff is permitted to go on the

Defendant land for repairing the wall in question once a year. He must, as provided by the trial Court give a fortnight''s notice in writing at the time

when he intends to make the repairs. The repairs, as already provided should be between 9 a.m. And 5 p.m. and shall not exceed four days in the

year.

(ii) 1965 (2) M.L.J.241 - N. Kamalammal, Wife of A. Manjia Pillai V. S. Chakraarthy and Ors. certain excerpts from it would run thus:

...It is settled that there is no other access to the southern wall and therefore the Appellant has an easement by necessity. On behalf of the

Appellant reliance is placed on Bhagavatula Subramanaya Sastry v. Bhagavatulu Lakshminarasimhan. In that case al that was held was that a

house owner in order to repair his wall on his neighbour''s side of the premises had the right to go to the other side of the wall on the land of his

neighbour, the right being in the nature of a necessary easement. But it was also pointed out in that case that such an easement did not extend to

going over the neighbour''s roof for that purpose. But that is what the Appellant precisely wants in this case, namely, to have access, through the

staircase, to the open terrace of the 1st Respondent''s house, so that she might effect repairs to her southern wall, and the windows on that wall.

Apart from that, the trial Court as a matter of fact found that there were other methods of attending to the repairs from within the property of the

Plaintiff himself. That finding is clearly fatal to the claim of easement of necessity.

The above excerpts from the famous treatise and also the above provisions of the Easements Act cited supra would unambiguously and

unequivocally highlight and spotlight the fact that a owner of a particular house is having a right to go into his neighbour''s land for the purpose of

repairing his outer side wall and also for whitewashing the same. In such a case, I am at a loss to understand as to how the first appellate Court

simply reversed the finding of the trial Court regarding the right of the Defendants to have ingress and egress into the suit property for effecting such

whitewashing and repairing.

No doubt, the trial Court was also not right in holding as though the suit property is the common property of both the Plaintiff and the

Defendants and here that was not the plea of the Defendants themselves.

To the risk of repetition and pleonasm, but without being tautalogous I would like to hold that the very claim of the Defendants that they are

having only easement right over the suit property would exemplify and demonstrate that they are not claiming joint ownership over the suit

property. Holding that the suit property is a common property is different from holding that the Defendants are having easementary right over the

suit property for the purpose of effecting whitewashing and repairing the Western side wall of their house.

The Defendants, without going into the suit property cannot, virtually, as revealed by the sketch available on record, effect whitewashing or

repairing and in such a case, the first appellate Court was wrong in rejecting the prayer of the Defendants to that extent.

In the result, the substantial questions of law are answered as under:

Substantial Question of law (i) is decided to the effect that the trial Court was justified in rejecting the prayer of the Defendants in the counter claim

for having the roof of the suit property, which belongs to the Plaintiff and the first appellate Court was not justified in reversing the said finding

relating to the aforesaid relief by ordering that such projection could exist. In other words, the substantial question of law (i) is decided to the effect

that the Defendants should remove the eaves of the roof projecting over the suit property of the Plaintiff.

Substantial question of law (ii) is decided to the effect that the first appellate Court was wrong in reversing the finding of the trial Court that the

Defendants should have ingress and egress to the suit property of the Plaintiff to whitewash and repair the wall of the Defendants. In other words,

the trial Court''s finding that the said area situated to the West of the Western wall of the Defendants is a common path way is wrong, but the trial

Courts recognition of the right of the Defendants that the Defendants should have ingress and egress to the Plaintiff''s area to whitewash and repair

the wall of the Defendants is justified.

Substantial Question of law (iii) is answered to the effect that since there was apparent perversity and illegality in the Judgments of both the Courts

below in not properly understanding the reliefs prayed and in granting the same, interference in the second appeal was warranted and that too, by

invoking Order 41 Rule 33 of Code of Civil Procedure

In order to make the point clear I would like to set out the reliefs to which the parties are entitled:

(i) The Defendants and their men shall have the right of ingress and egress into the suit property for the purpose of whitewashing as well as

repairing the Western side wall of the Defendants house; and

(ii) The Defendants shall remove the projection of the Defendants'' roof over the suit property and make their own arrangements to see that the rain

water falling from the roof of the Defendants is not falling into the suit property and accordingly, the reliefs are granted.

The second appeals are disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.

At the time of mentioning it has been brought to the knowledge of both sides, the actual realities which occurred during the litigative process.

The trial Court while decreeing the suit did not grant any relief as prayed for either by the Plaintiff in the plaint or by the Defendants in the counter

claim about the retention of the windows in the concerned wall of the Defendants. As against such non granting of relief in favour of the Plaintiff, no

appeal was filed, but cross appeal was filed by the Plaintiff and there was nothing solid referred to about the windows.

This Court while disposing of the second appeal adverted to the facts and evidence and granted the relief by permitting the Defendants to have

ingress and egress into the Plaintiff''s suit property for the purpose of repairing the Western side wall of the Defendants and also mandated that the

Defendants should remove the eaves of their roof over hanging on the Plaintiff''s property, which is situated to the West of the Western wall of the

Defendants.

In respect of the windows in the Western wall of the Defendants, the prayer in the plaint was for removing those three windows, however, in

the counter claim filed before the trial Court, the Defendants did not even make any prayer for retaining those three windows. The trial Court

dismissed the prayer of the Plaintiff as well as the Defendants, but granted the relief, on the trial Court''s own understanding and discretion and the

appellate Court did not grant any relief relating to the windows. In the counter claim filed in the trial Court also there is no prayer for retaining those

windows by the Defendants. The fact remains that as per the findings of the trial Court, the suit came to be filed only in the year 2002 and the

windows had been in existence for nearly four years only anterior to the filing of the said suit and not for 20 years, so as to attract the acquisition by

prescription as contemplated u/s 15 of the Indian Easements Act, 1882, wherefore, the Plaintiff was entitled to the relief of removal of those three

windows in the Western wall of the Defendants'' and for closure of that area occupied by those windows and the Defendants shall comply with the

same by closing down the windows.