Madras High Court
Varrey Tulasamma vs Nandula Buchiramaiah on 20 January, 1949
Equivalent citations: (1949)1MLJ314, AIR 1949 MADRAS 826
JUDGMENT Satyanarayana Rao, J.
1. The defendant is the appellant. The plaintiff and the defendant are adjacent owners of house property. The plaintiff is the owner of a one-third portion of a site on the west shown in the plaint plan and the defendant is the owner of the site and the house on the east which occupies two-third portion of the site marked in the plaint plan. The plaintiff purchased the site in 1938 and the defendant purchased it in 1936. In the year 1928 when the plot was under a common owner, a house was constructed in plot B of the plaint plan with the eaves projecting into site A to an extent of 2 feet 6 inches along the length of the wall for about 10 yards 2 feet; and from the eaves rain water was dropping into the site A. This state of affairs continued until disputes arose and the present suit was instituted by the plaintiff against the defendant for a mandatory injunction directing the defendant to remove at her expense the eaves on the western side of the house in plot B belonging to her and also for a permanent injunction restraining the defendant from allowing the rain water on the western side of the defendant's house from falling into the plaintiff's site.
2. The defendant claimed in the suit that she had acquired title to the eaves by prescription and that the plaintiff is not entitled to the injunction prayed for.
3. On the principle of the decision of this Court in Rathinavelu Mudaliar v. Kolandavelu Pillai (1906) 16 M.L.J. 281 : I.L.R. 29 Mad. 511 the trial Court held that the defendant had acquired title to the projection of the eaves by prescription as it was in existence for more than 12 years and that her right was not founded on an easement. Regarding the right to drop eaves water, the learned District Munsiff held that as the defendant was exercising the right of letting the water into the site B without let or hindrance by the plaintiff and his predecessors-in-title for a period of 16 years, it was not a case in which the Court should exercise its equitable jurisdiction by granting a permanent injunction restraining the defendant from letting the water into the site of the plaintiff. The result was that the plaintiff's suit was dismissed by the learned District Munsiff.
4. On appeal by the plaintiff, the learned Subordinate Judge reversed the decision of the District Munsiff and granted a mandatory injunction directing the removal of the eaves but refused to grant a permanent injunction asked for by the plaintiff. The decision of the learned Judge was based upon a distinction drawn by the Bombay High Court in Dahyabhai v. Hiralal A.I.R. 1936 Bom. 3 between the view of this Court and the view obtaining in that Court that in such cases the right could be acquired only by prescriptive easement and not ownership by adverse possession. The decision in Rathinavelu Mudaliar v. Kolandavelu Pillai (1906) 16 M.L.J. 281 : I.L.R. 29 Mad. 511 is a decision of a Bench of this Court and it was the plain duty of the Subordinate Judge to have followed the decision of this Court in preference to the decisions of other Courts. There is absolutely no justification for the learned Judge to have disobeyed the rule laid down for the guidance of the Subordinate Courts that they are bound by decisions of this Court. Applying the principle of the decision in Rathinavelu Mudaliar v. Kolandavelu Pillai (1906) 16 M.L.J. 281 : I.L.R. 29 Mad. 511 which has been followed in this Court ever since, the only conclusion that is possible in the present case is that the defendant had acquired a right to project the eaves by possession for a period of more than 12 years and that the plaintiff is not entitled to the mandatory injunction.
5. As regards the permanent injunction asked for, the trial Court refused to grant it to the plaintiff even though the defendant was not able to prove user for a period of 20 years and this view of the District Munsiff was upheld even by the learned Subordinate Judge. I see no reason to interfere with the discretion exercised by the Courts below in refusing to grant the permanent injunction. The right was exercised by the defendant for over 16 years till the date of suit and nearly four years have elapsed since the institution of the suit. I do not think that in the circumstances this is a fit case in which the defendant should be restrained by the grant of a permanent injunction.
6. The second appeal is therefore allowed, the decision of the learned Subordinate Judge is reversed and the decree of the District Munsiff dismissing the suit is restored with costs here and in the Court below. The memorandum of cross objections is dismissed. No costs. No leave.