Lekh Ram (deceased) and Others vs Hart Singh

J.V. Gupta, J.—This is Plaintiff''s second Appeal whose suit for permanent injunction has been dismissed by both the Courts below.

Lekh Ram Plaintiff filed this suit alleging that the house shown by letters ''ABCD'' in the site plan exhibit PA belongs to him. The Western wall of the said house shown by letters ''CD'' is jointly owned and possessed by the parties The Plaintiff has a stair-case constructed by the side of and supported by the said wall and has two alias in the back kotha of his house The wall was constructed alongwith the house of the Plaintiff about 30 years ago and he has acquired a right of use of the said wall. The Plaintiff has been using it openly and has a right of easement, for the last more than 30 years Since the Defendant wanted to demolish it and cause irreparable loss to him, he filed the present suit praying for an injunction restraining the Defendant from demolishing the said wall. The suit was contested inter alia on the ground that the said wall was his exclusive property. It was denied that the Plaintiff had the right of easement as alleged in the plaint. The trial Court found the wall in question was not joint of the parties and that the Plaintiff had not acquired any right of easement. As a matter of fact, no arguments were addressed before the trial Court regarding the acquisition of right of easement. The argument was raised on the basis of implied licence which plea was negatived because no such case was set up in the plaint. In appeal, the learned Additional District Judge, affirmed the said finding of the trial Court and has thus maintained the decree dismissing the Plaintiffs suit. Dissatisfied with the same, the Plaintiff has filed the second appeal in this Court.

The learned Counsel for the Appellant submitted that even if it be assumed that the wall ''CD'' was constructed on the land of the Defendant, even then since the construction of the house raised by the Plaintiff for more than 30 years ago and using the said wall for the support of his stair-case, he has acquired right of easement and, therefore, he was entitled to the relief of injunction. In support of his contention, he referred to the cases AIR 1931 373 (Lahore) Durga Parshad Vs. Jheetar Mal, and Ramakrishna Ayyar v. Ramanatha Pattar A. I. R. 1929 Mad. 819. On the other hand the learned Counsel for the Defendant-Respondent submitted that the right of easement was given up by the Plaintiff in the trial Court as well as before the Appellate Court and, therefore, he could not be allowed to agitate the same in this second appeal According to the learned Counsel, whether the Plaintiff has acquired the right of easement or not was a question of fact and since the Courts below have not gone into, the same could not be decided at this stage. Moreover, argued the learned Counsel, according to the evidence of the Defendant the Plaintiff constructed the house recently 5/6 years back before the institution of the suit and, therefore, the question of acquiring any right of easement did not arise.

After hearing the learned Counsel for the parties and going through the evidence on record, I find that though the plea of right of easement was not pressed before the Courts below but from the facts found on the record and assuming that the wall ''CD'', has been constructed by the Defendant on his own land, the Plaintiff is entitled to the releif of injunction on the ground that he has been using the wall for more than 20 years before the filing of this suit. It was held in Ramakrishna Ayyars case (supra) that where a person shows that his house and the partition wall belonging to his neighbour are old and the roof of the house rested on this wall for more than 20 years, he certainly acquires easement to rest his roof upon the partition wall of the neighbour irrespective of a litigation, within that period, regarding the possession of the wall. An injunction, therefore, preventing the neighbour from in any way interfering with the easement right to rest the roof upon the wall may be granted. Even on the basis of the wall constructed by the Defendant on his own land, the Plaintiff was entitled to the relief asked for.

Moreover, there is evidence on the record that the parties were near relations and the Defendant is no more residing in his house and has constructed his own house elsewhere. Under these circumstances to allow the Defendant to demolish the wall will mean causing loss to the Plaintiff to his stair-case which are supported by the said wall. A compromise was suggested to the parties but it is unfortunate that the Defendant-Respondent was not agreeable to any settlement.

Consequently, the appeal succeeds. The judgment and the decree of the Courts below are set aside and the Plaintiff''s suit is decreed with no order as to cost.