MOHAMMAD ABDUL JAMIL Vs. MANZOOR AHMAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff against a decree of the lower appellate Court which reduced the damages of the Court of first instance from Rs. 50 to Rs. 25 for demolition of a wall, and which refused the remedy of injunction to the plaintiff. The defendants have filed a cross-objection claiming that on the findings of the lower appellate Court the plaintiff is not entitled to any damages. The findings of the lower appellate Court were that: the wall which was in dispute was the wall of the upper storey of the house. The wall of the lower storey on which the upper wall rested belongs admittedly to the defendants. The upper wall however appears to have been made by the plaintiff. Having regard however to the fact that the defendants must have had knowledge of the construction of the wall and to the absence of any protest on their part it may, I think, be inferred that the wall was built either with the implied consent or without any protest on the part of the defendants.

(2.) Learned Counsel for the plaintiff contended that this would amount to an implied grant of licence by conduct of the grantor within the meaning of Section 54, Easements Act. Learned Counsel for defendants said that he could produce rulings to the contrary, but he could not find any such, rulings. I consider that on the findings of the lower appellate Court there was an implied grant of licence by the defendants to the plaintiff to construct the wall of this upper storey on the wall of the lower storey which belonged to the defendants. The two houses are side by side and the lower wall is apparently between the two houses separating them. The next point is contained in the judgment of the lower appellate Court which is as follows: The wall at best had been erected with the leave and the permission of the defendants. It is not shown that the licence cannot be revoked by the defendants.

(3.) Now under Section 60(b), Easements Act, a licence may be revoked unless the licensee, acting upon the licence has executed a work of a permanent character and incurred expenses in the execution. The lower appellate Court has found: The only loss that has been suffered by the plaintiff is the loss of construction of the wall. I am of opinion that a sum of Rs. 25 would be adequate as damages in this case.