GANGARAM Vs. HULASI

JUDGEMENT

(1.) THIS is a plaintiff's appeal and arises out of a suit for the recovery of Rs. 684/- as damages against the defendant. The plaintiff's case was that he had a three stored house adjoining the defendant's house and that in September, 1943, the defendant dug a cellar in his house in such a way that the foundations of the plaintiff's adjoining wall were exposed and the earth under it sank and the wall also went down for want of support and cracked upto the third storey. The arches were also cracked in all the floors due to the sinking of the foundations and had to be shored up to prevent their tumbling down. The defendant pleaded that his cellar was an old one and he had simply repaired it recently. He denied that any damage was done to the plaintiff 's wall and other parts of his building on account of the seller of the defendant, on the pleading of the parties the first court framed the following issues: - (1) Whether the defendant Sedhu got constructed an under-ground cell in his house with such negligence that the plaintiff's house got cracks at many places and breaks at others? (2) In case the issue No. 2 be decided in favour of the plaintiff what damage he can claim from the defendant? (3) Whether there is non joinder of parties? (4) Whether this suit is not maintainable as the plaintiff had not spent any money and that he has claimed damages on the basis of estimate and hence this suit is without any cause of action? (5) What shall be the relief. On the first issue the learned Munsif held that the construction work had been negligently handled, that the walls were plastered and a new roof was put and that every thing was done secretly and negligently without informing the plaintiff and without taking precautions against damage to his house. On this finding, the suit was decreed for the recovery of Rs. 724/ -.

(2.) THE defendant went in appeal and the learned District Judge, found that the plaintiff has not come to court with a case that he had acquired any right of support to his building by prescription. He has held that right of support from neighbour's land is available only in respect of land in unburdened and natural state; but when building has been constructed on land, there is no right of support unless it has been acquired by easement. According to him there was neither any pleading nor any evidence to show that the plaintiff had acquired a, prescriptive right of support to his building from the defendant's house or land or that the defendant had caused any damage to the plaintiff's house by negligence. He reversed the decree of the first court and dismissed the suit. THE plaintiff has come in second appeal against this appellate decree of the learned District Judge.