SURESH CHANDRA BISWAS Vs. JOGENDRA NATH SEN

JUDGEMENT

(1.) This is an appeal by the defendant in a suit instituted by the respondent for a mandatory injunction to pull down a cornice and string-course put no by him go as to overhang the plaintiff s land, upon declaration that he had no right to make such preventions.

(2.) The Courts below have found that the defendant had a hut on the disputed land in respect of which he had an easement. The only question in controversy is, whether the right of easement exists in respect of the two-storied building by which the hat has been recently replaced.

(3.) Now, it is well settled that no man can impose a new or increased restriction or burden on his neighbour by his own Act, and for this reason an owner of an easement cannot, by altering his dominant tenement, increase his right. This principle is well illustrated by the decision in Harvey v. Walters (1873) 8 C.P. 162 : 42 L.J.C.P. 105 : 28 L.T.343. In that case, the house in respect of which an easement was enjoyed was pulled down and was replaced by a new house three feet higher than the original one. The Court held that, in these circumstances, as there was no addition to the burden, the easement remained unaffected. The plaintiff there was the owner of certain premises the eaves of which projected over adjoining land of the defendants and bad become entitled by length of user to have the rainwater drop from such eaves on to the defendant s land. The plaintiff in rebuilding his premises carried the wall abutting on defendant s land to a slightly greater height than before, and raised the height of the eaves from the ground to the same extent. As there was no evidence that a greater burden was thrown on the servant tenement by the alteration, it was ruled that the easement was not thereby destroyed, and the plaintiff was entitled to the right of eavesdrop from the premises as altered. This decision followed the earlier case of Thomas v. Thomas (1835) 2 C.M. & R. 34 : 1 Gale. 61 : 5 Tyr. 804 : 4 L.J. (N.S.) Ex. 179 : 156 E.R. 15 : 41 R.R. 678.