IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.479 and 480 of 2008 and M.P.No.1 of 2008 1.Lakshmanan 2.L.Radhakrishnan 3.L.Sivanandham ... Appellants in both the appeals Defendants vs. G.Ayyasamy ... Respondent in both the appeals Plaintiff. These second appeals are filed against the judgements and decre dated 30.10.2006 passed by the Second Additional Subordinate Judg Coimbatore, in A.S.No.106 of 2006 and Cross Appeal No.106/2006 reversi the judgment and decree dated 3.1.2006 passed by the III Addition District Munsif, Coimbatore, in O.S.No.611 of 2002. For Appellants : Mr.V.Bhiman For Respondent : Mr.N.Ishtiaq Ahmed COMMON JUDGMENT These second appeals are filed by the defendants, inveighing t judgement and decree dated dated 30.10.2006 passed by the Seco Additional Subordinate Judge, Coimbatore, in A.S.No.106 of 2006 and in t cross appeal, reversing the judgment and decree dated 3.1.2006 passed the III Additional District Munsif, Coimbatore, in O.S.No.611 of 200 which was filed seeking permanent and mandatory injunction. 2. The parties, for the sake of convenience, are referred to he under according to their litigative status and ranking before the tri Court. 3. Compendiously and concisely, the relevant facts absolute necessary and germane for the disposal of these second appeals would r thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondent herein, as plaintiff, has filed the suit seeki the following reliefs: "to pass a judgement and decree against the defendant; a) Restraining the defendants, their men, agents, servants in anyway disturbing the peaceful possession and enjoyment of the suit property by the plaintiff encroaching or any manner by means of permanent injunction. b) directing the defendants to remove the three windows and the eaves of the tiled roof projection towards the suit property situated in the eaves of the tiled roof projection towards the suit property situated in the North South Wall in the eastern boundary of the suit property by means of mandatory injunction.." (extracted as such) (b) The defendants resisted the suit by filing written stateme along with the counter claim making the following claims: "to declare the defendants' easementary right of access over the eastern vacant site of the suit property for white washing, repairing and maintaining their western "AB" wall described in the schedule and consequential permanent injunction restraining the plaintiff from in any way interfering with their right of entry into the eastern vacant site of the suit property for the purposes of white washing, repairing and maintaining 'AB" wall: to declare the defendants' easementary right of projection of eaves of their western tiled roof into the suit property and consequential permanent injunction restraining the plaintiff from cutting down the projecting eaves and draining rain water falling therefrom into the suit property; to direct the plaintiff to pay the costs of counter claim." (c) Whereupon the trial Court framed the issues. The plaintiff his side examined himself as P.W.1 along with P.W.2 and P.W.3 and mark Ex.A1 to A13. On the defendants' side, the second defendant examin himself as D.W.1 along with D.W.2 and D.W.3 and and marked Exs.B1 B15. Exs.C1 and C2 were marked as Court documents. (d) The trial Court dismissed the suit as well as the counter clai however, granted the reliefs in favour of both to the effect that the ar situated to the Western wall of the is the common pathway for bo plaintiff and the defendants and they should enjoy by putting up a gate the entrance. (e) Being aggrieved by and dissatisfied with the judgement a decree of the trial Court, the plaintiff preferred the appeal and t defendants filed the cross-appeal. The appellate Court reversed t judgement and decree of the trial Court to the effect that the defendan have no right of ingress and egress into the suit property. However, t appellate Court allowed the aerial projection of the defendants' roof https://hcservices.ecourts.gov.in/hcservices/ continue. 4. Challenging and impugning the judgement and decree of t appellate Court, the defendants preferred the second appeal on vario grounds, inter alia to the effect that the defendants would be having opportunity of repairing their Western side wall without entering in the suit property. 5. The following substantial questions of law are found suggested both the second appeals: "a) Whether in law is not the lower appellate Court wrong in reversing the decree and judgement of the trial Court in the absence of seeking declaration of title. b) Has not the lower appellate Court erred in overlooking that the plaintiff has to prove his case and cannot succeed on the weakness of the defendant. c) Has not the lower appellate Court omitted to see that the Order in Ex.A7 has become final and in the absence of challenging the same as well as Ex.B2 sale deed by the plaintiff, they cannot be ignored." 6. Heard both sides regarding the substantial question of law to framed and accordingly, the following substantial questions of law a framed. (i) Whether the trial Court was justified in rejecting the prayer of the defendants in the counter claim for having the projection of the roof of the defendants over the suit property which belong to the plaintiff and whether the first appellate Court was justified in reversing the said finding relating to the aforesaid relief by ordering that such projection of the roof of the defendants could exist, so as to enable the rain water to fall into the suit property of the plaintiff without the backing of the law in support of the appellate Court's finding? (ii) Whether the first appellate Court was right in reversing the finding of the trial Court, in the absence of any law supporting the findings of the appellate Court, which held that the defendants should have ingress and egress into the suit property of the plaintiff to whitewash and repair the wall of the defendants? (iii) Whether there is any perversity or illegality in the judgements passed by both the Courts below? 7. Points (i) to (iii): All these points are taken together f discussion as they are interwoven and interlinked, interconnected a entwined with one another. 8. Both sides advanced arguments in this connection. https://hcservices.ecourts.gov.in/hcservices/ 9. The gist and kernal of the arguements of the learned counsel f the appellants/defendants would run thus: (i) It is quite obvious and axiomatic that the defendants are havi no land belonging to them situated to the West of the defendants main wa and in such a case, in order to repair the said wall of the defendant necessarily, the defendants have to have ingress and egress into t plaintiff's property, which is a suit property and carry out repairs the defendants' wall. (ii) The appellate Court, without having any regard for this appare factual as well as the legal position, simply dismissed the prayer of t defendants. (iii) The trial Court erroneously rejected the prayer of t defendants to have the defendants' roof projecting over the suit proper and that right was acquired by the plaintiff by continuous enjoyment f over 80 years, whereas, the first appellate Court so far that relief concerned, correctly decided in favour of the defendants. (iv) The learned counsel for the appellants/defendants would pray f setting aside the judgement and decree of the first appellate Court rejecting the prayer of the defendants for declaring their easement rig to have ingress and egress into the suit property for repairing t Western side wall of the defendants. Accordingly, the learned counsel for the appellants/defendants pra for allowing the second appeals. 10. By way of torpedoing and pulverising the arguements as put for and set forth on the side of the appellants/defendants, the learn counsel for the respondent/plaintiff would submit thus: (i) The the defendants are having no right of ingress and egress in the suit property, which exclusively belonged to the plaintiff and t defendants cannot have their roof projecting over the suit property. (ii) Even though no appeal has been preferred as against the fir appellate Court's judgement in granting the relief of the eaves projecti over the suit property, in favour of the defendants, still this Cour while comprehensively deciding these appeals, by virtue of Order 41 Ru 33 could decide the entire lis, in the interest of justice, that t defendants are not having any right to have eaves projecting over the su property. 11. At the outset itself I recollect and call up the followi maxims: "(i) Cujus Est Solum Ejus Est Usque ad coelum' – The person who owns the soil owns up to the sky. (ii) 'Superficies solo cedit' – The surface goes with the land. (iii) 'Sic Utere Tuo ut alienum non laedas' – Use your property so as not to damage aother's. https://hcservices.ecourts.gov.in/hcservices/ 12. The owner of the property is entitled to have his right exercis up to the sky and in such a case aerial projection cannot be permitted. 13. I would like to refer to the relevant passages in the famo treatise 'The Law of Torts ((25th Edition 2006 page 374): "Tresspass, in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a man's person or to his property. But the most obvious acts of trespass are – (1) trespass quare clausum fregit "because he (the defendant) broke or entered into the close" or lad of the plaintiff; and (2) trespass de bonis asportatis, wrongful taking of goods or chattels. Here we are concerned with the former, i.e.trespass to land. Trespass to land is also an offence under the Indian Penal Code (s.441) provided the requisite intent is present. To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of an enclosure is necessary. "Every invasion of private property, be it ever so minute, is a trespass." Trespass may be committed (1) by entering upon the land of the plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole possession of the plaintiff, in each case without justification. (1) Entry is essential to constitute a trespass. A man is not liable for a trespass committed involuntarily, but he is liable if the entry is intentional, even though made under a mistake, e.g.,if, in mowing in his own land, a man inadvertently allows his blade to cut through into his neighbour's field, heh is guilty of a trespass. Notwithstanding the decision of Court of Appeal in Letang v. Cooper, approving Fowler v. Lanning, which lays down that intention is a necessary element to constitutes trespass to person, it is still the law that an entry upon another's land constitutes trespass to land whether or not the entrant knows that he is trespassing. If the defendant consciously enters upon a land believing it to be his own but which turns out to be of the plaintiff, he is liable for trespass. But a person is not liable if the entry is involuntary, e.g., when he is thrown upon the land by someone else. In such a situation, there is no act of entry at all by the defendant. It is also possible that the defendant may successfully plead inevitable accident in his defence. The presumption is that he who owns the surface of land owns all the underlying strata. So an entry, beneath the surface at whatever depth, is an actionable trespass at the instance of the owner of surface. But it is possible that the underlying strata may be in possession of a different person, e.g., when mining rights are held by a person who is not in possession of the surface. So if the surface of land is in https://hcservices.ecourts.gov.in/hcservices/ possession of A and the subsoil in possession of B, entry on the surface will be trespass against A and entry in the subsoil will be trespass against B, e.g., a tunnel dug from the adjoining land; and in case of a vertical hole dug on the land that would be trespass both against A and B. . . . . . . . . . . (3) Every interference with the land of another, e.g., throwing stones or materials over a neighbour's land, is deemed constructive entry and amounts to trespass. Deliberate placement of matter, e.g., jettisoning of oil, in such circumstances, as will carry it to the land of the plaintiff by natural forces, may constitute trespass. The matter may not be tangible; if may be gas or invisible fumes. A trespass may be committed by driving a nail into a person's wall, or by placing anything against his wall, or by shooting over his land, or by placing anything above and overhanging his land, or by planting trees in his land, or placing any chattel upon his land, or causing any physical object or noxious substance to cross the boundary of his land. But trespass of the nature described above must be distinguished from private nuisance which resembles trespass. The distinction is important for trespass is actionable per se whereas nuisance is actionable only on proof of damage. The distinction lies in the nature of the injury whether it is direct or consequential. If the injury is direct, it is trespass; whereas, if the injury to the plaintiff is consequential it is a case of nuisance. If a person throws stones on the neighbour's land, it is trespass. If a person plants a tree on his land the roots of which after some years undermine the foundation of the neighbour's building, it is nuisance. Discharge of filthy water on plaintiff's land from a spout in defendant's house is trespass. 2(B) Aerial Trespass The owner of land is entitled to the column of air space above the surface ad infinitum. The ordinary rule of law is that whoever has got the site – is the owner of everything up to the sky and down to the centre of the earth. An ordinary proprietor of land can cut and remove a wire placed at any height above his land. At least in modern times, this is an overstatement. The correct view is that the owner's right to air and space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it. If the rule were as used to be stated earlier, it would lead to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburbun garden. If a man were to erect a building overhanging the land of another, he would commit trespass and an action would lie against him." 14. I would also like to refer to Section 15 of the Indian Easemen https://hcservices.ecourts.gov.in/hcservices/ Act, 1882, which is relating to acquisition by prescription and al Section 17, which would contemplate that certain rights cannot be acquir by prescription: "Section 15. Acquisition by prescription – Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested." Section 17. Rights which cannot be acquired by prescription – Easements acquired under Section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired - (a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed; (b) a right to the free passage of light or air to an open space ground; (c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise; (d) a right to underground water not passing in a defined channel." 15. The above provisions of law and the passages extracted supra fr the famous treatise on Law of Torts would amply make the point clear th the defendants should arrange their own roof in such a manner that t rain water falling on their roof does not flow into the suit propert There is nothing to indicate and exemplify that the suit property is t joint property of the plaintiff and the defendants. In fact, from a me perusal of the written statement and the counter claim, it is clear th the defendants claim only easementary right to have ingress and egre into the suit property, which is situated to the West of the defendant wall and they also pray for retaining the projection over that su property, as an easement only. 16. At this juncture, I would like to extract hereunder Section 4 the Indian Easements Act, 1881: "Section 4. "Easement" defined – An easement is a right https://hcservices.ecourts.gov.in/hcservices/ which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners – The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner." Here the plaintiff is the owner of the servient heritage and t defendants are the owners of the dominant heritage. 17. Accordingly, if viewed it is clear that the defendants themselv categorically and candidly, pellucidly and palpably admit that t plaintiff is the owner of the suit property, over which the defendan claimed such easementary right. Without having regard to this fundament principle of law, the Courts below decided the lis, warranti interference in second appeal. 18. By virtue of Order 41 Rule 33, this Court, while dealing with t matter of this nature should necessarily rectify the error of l committed by the Courts below. Accordingly, if viewed it is clear th the first appellate Court was wrong in its approach in holding that t defendants could have the eaves of the roof of the defendants' projecti over the suit property belonging to the plaintiff. 19. At this context, I would like to refer certain excerpts from t Broom's Legal Maxims (Tenth Edition – page Nos.238 and 240): 'Sic Utere tuo ut alienum non laedas' – Enjoy your own property in such a manner as not to injure that of another person. A man must enjoy his own property in such a manner as not to invade the legal rights of his neighbour: expedit reipublicae ne sua re quis male utatur. "Every man," observed Lord Truro, "is restricted against using his property to the prejudice of others"; and :the principle embodied in the maxim, sic utere tuo ut alienum non laedas, applies to the public in at least as full force as to individuals. . . . . . . . . . . . . In trespass quare clausum fregit, the defendant pleaded that he had land adjoining plaintiff's close, and upon it a hedge of thorns; that he cut the thorns, and that they, ipso invito, fell upon the plaintiff's land, and the defendant took them off as soon as he could. On demurrer, judgment was given for the plaintiff, on the ground that, "though a man do a lawful thing, yet if damage thereby befalls another, he shall answer it, if he could have avoided it" . . . . . . . . . https://hcservices.ecourts.gov.in/hcservices/ The following instances will serve to show in what manner the maxim placed at the head of these remarks is applied, to impose restrictions, first, upon the enjoyment of property and secondly, upon the conduct of each individual member of the community. In illustration of the first branch of the subject, we may observe, that, if a man build a house so close to mine that his roof overhangs mine, and throws the water off upon it, this is a nuisance, for which an action lies. . . . . " 20. As such, necessarily, the defendants should remove their roof projection over the suit property in such a manner that it is n projecting over the suit property of the plaintiff and that the rain wat falling from the defendants roof should be arranged in such a manner th it is not falling into the suit property and for that the defendants ha to take remedial measures and any one having civil engineering knowled or an experienced mason would be able to guide the defendants to make su arrangements. 21. The next phase of the dispute involved in this case is as whether the defendants could have ingress and egress into the su property, so as to whitewash and repair the defendants wall. 22. In this connection, the learned counsel for t appellants/defendants cited the following two decisions of this Court. (i) 1965 (II) M.L.J. 522 – L.DAMODARASWAMI NAIDU V S.T.DAMODARASWAMI NAIDU, certain excerpts from it would run thus: ". . . My attention was drawn by the learned counsel to a recent decision of Veeraswami,J., in Kamalammal v. Chakravrthy. It was not necessary to discuss the question because the Court in that case was not called upon to decide whether this right of access was a necessary easement that would attach to every wall. Therein referring to Bhagavatulu Subramanya Sastri v. Bhagavatula Lakshminarasimhan, the learned Judge has observed as follows: "In that case all that was held was that a house owner in order to repair his wall on his neighbour's side of the premises had the right to go to the other side of the wall on the land of his neighbour, the right being in the nature of a necessary easement.' . . . . . . . . . In the view I take, and as the facts of the present case differ from the facts of the decision in Bhagavatula Subramanya Sastri v. Bhagavatula Lakshminarasimhan. I prefer to follow the decision of Krishnaswami Naidu, J., and hold that the plaintiff in this case has the right he claims to go over the vacant space of the defendant to carry on repairs to the exposed northern wall. It may be rested as an urban servitude customarily enjoyed or on the facts of this case as a grant implied from the existence of the wall for over twenty https://hcservices.ecourts.gov.in/hcservices/ years at the very extremity of the property. . . . . . In my view as in Bhagavatula Subramanya Sastri v. Bhagavatula Lakshminarasimhan, it would be sufficient if the plaintiff is permitted to go on the defendant land for repairing the wall in question once a year. He must, as provided by the trial Court give a fortnight's notice in writing at the time when he intends to make the repairs. The repairs, as already provided should be between 9 a.m. And 5 p.m.and shall not exceed four days in the year. (ii) 1965 (II) M.L.J.241 – N.KAMALAMMAL,WIFE OF A.MANJIA PILLAI S.CHAKRAARTHY AND OTHERS, certain excerpts from it would run thus: ". . . . . It is settled that there is no other access to the southern wall and therefore the appellant has an easement by necessity. On behalf of