BHAGAVATULA SUBRAMANYA SASTRI Vs. BHAGAVATULA LAKSHMINARA SIMHAM

JUDGEMENT

(1.) This second appeal relates to the plaintiff s right to repair certain walls by going on the defendant s land. We shall take each of these in order. The first wall is W1. With respect to this, the Subordinate Judge allowed the plaintiff the right to go on the land 0 belonging to the defendant in order to repair the wall oil the defendant s side. The plaintiff has eaves projecting 2? inches over the defendant s ground. It is unnecessary to consider whether this by itself would give him the right to go on the defendant s land to repair the wall. Admittedly, there was a mud wall standing on the site of W1 before the partition between the parties and the plot Al, including the wall fell to the plaintiff s share. The plaintiff was, undoubtedly, entitled under the partition instrument to enjoy the wall. The repair of the wall is reasonably necessary for its enjoyment. We must, therefore, regard the right to go to the defendant s side of the wall to repair W1 as a necessary easement. Plastering the wall on the defendant s side is necessary to keep it standing. We confirm the Subordinate Judge s decree in this respect on the ground that the right to go to the other side of the wall on the land C is a necessary easement. The plaintiff, however, is, undoubtedly, not entitled to go over the defendant s roof for that purpose. It is impossible to see on what ground this claim can be supported. There is no evidence of any contract allowing the plaintiff to do so. The Subordinate Judge s decree must be modified by disallowing this right.

(2.) The next wall is W 3. This is a new wall constructed by the plaintiff in 1905. There is 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. We may note that it is rather confusing to speak of acquiescence a source of easement. Unless the acquiescence amounts to an implied contract granting the easement, any omission to object to the enjoyment of the easement will not give the dominant owner any right except in cases where the enjoyment has gone on for the prescriptive period and an easement by prescription can be claimed having regard to the nature of the right. There is absolutely no evidence of any customary right to support the plaintiff s claim with regard to W3. The decree of the lower Appellate Court must, therefore, be modified by refusing the reliefs with regard to this wall.

(3.) With regard to W4, the finding is that the plaintiff s eaves project 22 inches over the defendant s house. The wall is necessary to support the eaves. It belongs to the plaintiff. In order that the easement with regard to the protection of the eaves may be enjoyed; it is necessary that the wall on which the eaves rest should be repaired. This, it is not reasonably possible to do except by going on the defendant s land. We See no reason to differ from the view taken on this point in Hayagreeva v. Sami 15 M. 286. The Subordinate Judge s decree must be confirmed with respect to this wall.