ABDUL RAHEMAN Vs. MULCHAND

JUDGEMENT

(1.) ON the finding the plaintiff is an encroacher on the defendant's premises, as such he deserved no sympathy, nor could any equitable considerations prevail in his favour. It is, however, said that the defendant was guilty of pulling down the plaintiff's structure which depends for its support on the defendant's existing wall, when he pulled down his own wall. In short he designedly pulled down his own wall in order to cause wrong to the plaintiff by depriving him of the side support which his (defendant's) wall afforded to plaintiff. On behalf of the defendant it is argued that the plaintiff's superstructure was admittedly a modern one and, had it beets permitted to continue to rest itself on the defendant's wall, plaintiff could haw acquired a prescriptive right to support his modern wall on defendant's wall, and, therefore, it was lawful for the latter to withdraw the support in the manner h& did. Eelianoe is placed upon a passage occurring in Clerk and Lindsell on Torts, 6th edn., p. 496, which I may usefully quote here: Not only is the defendant under no obligation; to take care in such a case but he may lawfully cause the damage intentionally with the very object of preventing, the acquisition of a right of support, though probably the oase would be reversed if the party aggrieved had, by prescription, acquired such right: Guteley v. Marten 1 R.R. 269.

(2.) IN view of this state of the law, the plaintiff has no cause for complaint if the defendant withdrew the Support of his own wall from under the plaintiffs' modern superstructure only three years after its construction, i.e., before the user had ripened into a prescriptive right by 20 years enjoyment : cf. Ballon v. Angus [1881] 6 A.C. 740. Under these circumstances I think plaintiff's claim was rightly dismissed with costs. The appeal fails and is dismissed with costs.