N RAMAKRISHNA AIYAR Vs. SEETHARAMA IYER

JUDGEMENT

(1.) 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 C. D. 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 of 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 plaintiff s right of support.

(2.) 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 why not raised in the lower Court. 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. Maberly v. Dowson 5 L.J. (o.s.) K.B. 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.

(3.) 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. Bonami 9 H.L.C. 503 : 31 L.J.Q.B. 181 : 7 Jur. (n.s.) 809 : 4 L.T. 754 : 9 W.R. 769 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 9 H.L.C. 503 : 31 L.J.Q.B. 181 : 7 Jur. (n.s.) 809 : 4 L.T. 754 : 9 W.R. 769 by Lord Wensleydale at 513; see also Goddard on Easements, page 401, 4th Edition. Moreover, it was held, in Corporation of Birmingham v. Allen 6 Ch. D. 284 : 46 L.J. Ch. 673 : 37 L.T. 207 : 25. W.R. 810 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.