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---S. 15-Easement-Acquisition by prescription-Wall in dispute having a superstucture thereon from times immemorial-Superstructure belonging to defendant and his predecessors in interest and no objection ever raised by plaintiff or his predecessors-Defendant, held, acquired a right of support on wall by prescription-Whether defendant utilised such right of support for purpose of a wall or fur a lintel-Makes no difference as long as lintel did not damage wall underneath and more support was not sought to be extracted than what could be given by wall-Question whether wall was property of one party or other-Not relevant in circumstance.

Gale on Easements, 12th Edn., p. 375 ref.

M. Akrarn Khawaja for Appellant.

Muhammad Ismail for Respondent No. 1.

Abdul Hafeez for Respondents Nos. 2 to 4.

Date of hearing : 10th May 1974.

Mohammad Amin plaintiff-respondent filed a suit against Muzaffar AIL Mst. Aisha Bibi, Mst. Noor Fatima and Mst. Noor Zainab for a perpetual injunction directing Muzaffar Ali to remove a lintel from over a wall owned by Mohammad Amin and described in the plaint which was said to have been constructed without authority and further directing him to demolish that portion of the wall which was in excess of 15 feet in height. The basis of the suit was that one Budha the prepositus of defendant No. 1 had made that construction in the absence of the father of the plaintiff but had later accepted his mistake and had undertaken in writing to remove the structure as and when required by the father of the plaintiff. The suit was contested by Muzaffar Ali, defendant No. 1, who asserted that the wall in dispute belongs to him and that it was a part of a three-storeyed house belonging to him which had been in existence for 75/80 years. He further asserted that Budha was not his prepositus nor was he ever the owner of the house nor had he given any such written undertaking as was indicated in the plaint and even if he had done so he had no right to do so. In the alternative, he claimed a right of support from the wall in dispute as it neither interfered with the rights of the plaintiff nor could cause any damage to the wall itself.

The learned trial Court framed the following issues :-

(1) Whether the defendant No. 1 is the owner of the disputed wall O. P. D. 1.

(2) Whether Budha was the common ancestor of the defendant No. 1 and the original owner of the house now , owned by the defendant No. 1 If so, whether be executed any agreement in favour of the plaintiffs' common ancestor in respect of construction of the upper storey of the house now occupied by the plaintiff and what is its effect O. P. P.

(3) In case issue No. 1, is not proved, whether the defendant No. 1 was entitled to place lintels on the wall A. B. at places X. Y. and 'X' Y O. P. P.

(4) Whether the plaintiff is estopped by his word and deed from bringing this suit O. P. D. 1.

(5) Relief.

The plaintiff's suit was dismissed with costs on 10-4-1962.

An appeal having been filed against it, Sh. Iqbal Ahmad, District Judge, Sialkot, accepted the same partially directing defendant No. I to remove his lintels indicated at points X and Y on the site plan Exh. P. 2 but rejected the claim with regard to the removal of the construction on the wall in dispute up to the height of 15 feet since it had been in existence as far back as 1902. This is a Second Appeal by Muzaffar Ali, defendant No. 1.

The learned trial Court found that Budha had not been proved to be the ancestor of defendant No. 1 and this finding was affirmed by the learned District Judge. It can, therefore, not be reopened at this stage and the very basis of the plaintiff's suit disappears because he wanted the suit to be decreed on the basis of an averment that Budha was the prepositus of defendant No. 1 and he had after constructing the disputed structure undertaken in writing to demolish it as and when required by the plaintiff's predecessor-in-interest. The bottom out of the suit having thus been knocked out so far as the demolition of the wall is concerned, it was rightly dismissed to this extent.

The next point concerns the construction of the lintel X Y. It was admitted in paragraph 4 of the plaint itself that before the lintel was constructed, there was a wall "C, D" which had been replaced by this lintel after the former having been demolished. It was claimed that this act has resulted in increasing the pressure on the supporting wall and that cracks had appeared at three places in it. The allegation about damage to the wall was denied by defendant No. 1. The learned trial Court found that in the opinion of the Local Commissioner the disputed wall "A, B" was a part of the plaintiff's house. The learned trial Court was, however, of the opinion that since the wall separated the two houses of the plaintiff and defendant No. 1 admitted that it forms part of both the houses. The learned District Judge, however, relied upon the report of the Local Commissioner for the purpose of determining that the wall in dispute belongs to the plaintiff. Be that as it may, the fact remains that the wall in dispute had a superstructure on it from times immemorial which belonged to defendant No. 1 and his predecessor-in-interest and that no objection had ever been raised by the plaintiff or those who preceded him. It is, therefore, clear that the defendant had a right of support on the wall in dispute. Whether he utilised that right of support for the purpose of a wall or for a lintel would make none the difference so long as the lintel did not damage the wall underneath and more support than that which could be given by the wall underneath was not sought to be extracted from it. There is no finding that any damage has been caused to the wall.

In these circumstances the question whether the wall was the property of one party or the other was not relevant for the disposal of the issue before the learned Court and the finding whether right or wrong, that the wall was a part of the house of the plaintiff would not sway the balance in his favour.

Gale in his book on Easements, 12th Edn., at page 375 has observed that-

"According to the recent decisions the right o: support for one building by an adjacent building is similar to the right of support for a building by land. Such a right may in the case of buildings belonging to different owners be claimed by prescription in which case the enjoyment must have been as of right and, therefore, open." It has already been noted above that there is no dispute about the fact that the enjoyment of the right of support in this case was open and as of right ever since 1906. In any case, therefore, the right had been acquired by prescription.

The appeal is, therefore, accepted, the judgment and decree of the learned lower appellate Court is set aside and the suit is mismissed in toto.

S. A. H. Appeal accepted.

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