N. Ramakrishna Ayyar vs V. Seetharama Ayyar

Sundara Ayyar, J.—In this case the plaintiff and defendant purchased adjacent houses. The wall between the two houses belongs to the

defendant. The plaintiff has an upstair shed in his house which is supported on one side by the defendant''s parapet wall CD. The suit is inter alia to

restrain the defendant from interfering with his right of support. Both the lower Courts have found that the plaintiff has been in enjoyment o? the

right of support for more than the period prescribed in Section 15 of the Easements Act. The plaintiff has been given a decree restraining the

defendant from interfering with the plaintiffs right of support.

Two points have been argued in this Second Appeal. The first is that the shed is only a temporary one and not permanently attached to

plaintiff''s house and that no right of support can be claimed for such a structure. But this contention was not raised in the Lower Courts. The point

of contest there-was as to how long the shed had been in existence and not the nature of the shed. It was not contended there that the shed should

not be regarded as a permanent one from its very nature. Maberley v. Dowson 5 L.J. 261 relied on for the appellant is really of no use to him. In

that case which related to the right to light and air it was found that the structure in question was only of a temporary nature. But here as already

pointed out no such contention was raised. As a matter of fact the shed seems to be of a permanent character with walls on three sides. It is

however unnecessary to decide that point as it was not properly raised in the lower Courts.

The next contention is that as the defendant has not deprived the plaintiff of his support and as the plaintiff has sustained no damage by any act

done by the defendant, the plaintiff has no cause of action and the decision in Backhouse v. Bonomi (1861) 9 H.L.C. 503 is relied on. That case

related to interference with the natural right of support but not to disturbance of a right to support as an easement. The distinction between the two

classes of cases is pointed out in Backhouse v. Bonomi (1861) 9 H.L.C. 503 by Lord Wensleydale; see also Goddard on Easements, fourth

edition, page 401. Moreover it was held in Corporation of Birmingham v. Allen (1877) 6 Ch. D. 284, that actual damage is not necessary to entitle

a person having the right to support to an injunction and the rule requiring damage was applicable only to an action for damages. The reason for

holding that actual-damage is necessary to sustain a suit for damages where a natural right of support from the soil of an adjoining owner has been

infringed does not seem to be applicable where the disturbance is of a right by easement to superficial support.

The next question raised is whether the plaintiff is entitled to an injunction requiring the defendant to rebuild the cornice pulled down by him in

FA marked in the plan. The cornice was admittedly on the defendant''s side and an appurtenance to his wall. The District Munsif disallowed the

injunction on the ground that plaintiff failed to prove that any damage was caused to him. The District Judge has not really reversed that finding. He

merely says that ""it is defendant''s wall that is likely to suffer, but if it does, it will cause much harm to plaintiff''s house and little to defendant."" It is

admitted that there is no evidence on record that the wall is likely to suffer by the removal of the cornice. We sat aside the District Judge''s decree

in so far as it modified that of the Munsif and restore the Munsif''s decree. The parties will boar their respective costs in this and in the lower

Appellate Court.