SUBRAMANIA MUDALIAR Vs. PACHAIYAPPA MUDALIAR

JUDGEMENT

(1.) THE defendant is the appellant. The suit was for a declaration that the northern wall of the plaintiff's house belonged to him exclusively and for an injunction restraining the defendant from preventing the plaintiff to enter into the defendant's premises for the purpose of repairing that wall. The ownership of the wall was in dispute as the defendant contended that the wall in question belonged to him exclusively. The finding of the lower appellate Court is that the plaintiff has established title to the wall and following the decision reported in Bhagavathula Subramania Sastri v. Bhagavatula Lakshminarasimham, 16 Ind.Cas. 893, the learned District Judge held that the plaintiff is entitled to the right claimed by him to enter into the defendant's premises for repairing his wall but directed that he should be permitted to go in to the defendant's land for repairing the wall in question once a year after giving one month's notice in writing of the time when he intends to make the repairs and that the repairs must be made between the hours 9 A.M. and 5 P.M. and should not extend for more than one month. An injunction on those terms was granted by the lower appellate Court to the plaintiff.

(2.) THE defendant, appellant, now contends while questioning the correctness of the finding of the learned District Judge with regard to the ownership of the wall in dispute, that such a right to enter into the defendant's premises to repair the wall could only be acquired by prescription as an easement and that the evidence in the case was not sufficient to establish that the plaintiff had acquired that right. The only evidence in the case was that 25 years ago the plaintiff's men went into the defendant's property and repaired the wall in question. The decision in Baghavaula Subramania Sastri v. Bhagavatula Lakshminarasimham, 16 Ind.Cas. 893, may not be considered to have any direct application to the facts of the present case. In that case a bench of this Court held that a house owner in order to repair his wall on his neighbour's side of the premises has the right to go to the other side of the wall on the land of his neighbour and that such a right is in the nature of a necessary easement but that the easement does not extend to going over the neighbour's roof for that purpose.

(3.) WHILE dealing with another wall, W. 3, a newly constructed one by the plaintiff, it was observed that there was no evidence of any contract by the defendant permitting the plaintiff to go to the defendant's side of the wall to repair it in order that his eaves might be protected. In that view they denied the right of the plaintiff to enter into the defendant's side and repair the wall he has newly put up. The learned Judges noted that acquiescence on the part of the defendant would not amount to easement and that in the particular case there was no evidence of any customary right to support the claim of the plaintiff with regard to wall, W. 3. In the present case there is no evidence to show that the wall in question is one which fell to the share of the plaintiff, under a partition arrangement. It should, therefore, be considered whether there is an obligation on the part of the defendant to permit the plaintiff or his workmen to enter into his property to repair his wall and to keep it in a good condition. The plaintiff has been declared to be entitled to the wall in dispute by the lower appellate Court with which finding I am unable to see any ground for interference and the only question is whether the plaintiff in order to repair his wall standing on the defendant's side has a right to go to the defendant's side to carry out repairs or plastering and whether such a right has necessarily to be acquired by prescription or whether such an easement could be considered as a right attached to the ownership of the property.