RAMAKRISHNA AYYAR Vs. RAMANATHA PATTAR

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. The plaintiff and defendant 1 are the owners of the adjoining premises, the plain-tiff's premises being to the west of: defendant 1 s. A wall running north to the south separates the plaintiff's from the defendant s, and the same belongs to defendant 1. The roof of the plaintiff's house has been resting on this wall. The defendant tried to pull down that wall, and the plaintiff instituted the suit which gave rise to this appeal for a declaration of his right to have the roof of his house rested on the wall and for an injunction to restrain the defendant from doing anything which would interfere with the right of support which the plaintiff claims. The learned District Judge of South Malabar recorded the following finding: I agree with the findings of the learned District Munsif that both the wall and the house (plaintiff's house) are old and the roof must have rested on this wall for more than 20 years...it is not necessary for a person claiming an easement specifically to prove that there was no permission from the owner. It is sufficient if he proves user for more than 20 years. I find that the plaintiff has acquired an easement to rest his roof upon the wall in question.

(2.) He accordingly granted an injunction preventing the defendant from in any way interfering with the plaintiff's easement right to rest his roof upon the plaint wall, and that so long as the defendant does not interfere with the plaintiff's roof, the defendant will be at liberty to alter or re-construct the wall as much as ho pleases.

(3.) Defendant 1 (who is the owner of the wall and is the only contesting defendant) preferred a second appeal to the High Court, and a learned Judge of this Court, being of opinion that the District Judge had not considered all the evidence in the case, called for fresh findings which were submitted by another District Judge and on receipt of the same reversed the District Judge's decision and dismissed the suit. The plaintiff has preferred this Letters Patent Appeal.