TMI Blog1996 (8) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff in cutting away the said tree. The suits were decreed as follows with the observations: OS. No. 341 /68: The suit is decreed in favour of the plaintiff and against the defendants for permanent injunction restraining the defendants in any manner of interfering with the raising of the height of 14 wall constructed to the west of FG wall and also with the raising of the newly added wall constructed to the north of GJ wall and in making constructions over the said newly added wall. OS. No. 195/74: The suit is decreed in favour of the plaintiff against the defendants declaring that the wall HJV except to the width of 10 south of HJ wall belongs to the plaintiff and the rest of the suit claims are dismissed. The appellant herein is the plaintiff and the respondents are the defendants. The plaintiff took up the matters in appeal in both the suits challenging the observations made by the learned Principal District Munsif, Tanuku which were confirmed by the learned Subordinate Judge after hearing both the sides. No other matter decided by the learned Principal District Munsif on other issues was called in challenge by either of the parties. In these appeals also, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the defendants over 10 portion of the disputed wall could be title by adverse possession or by prescription or by easement? 3. (a) Whether the Judgment and Decree of the Courts below are illegal and warrant interference in Second Appeal? (b) If so, to what extent? The Learned Advocates have raised many incidental questions of law touching the questions above and which are relevant for determination of the real controversies between the parties in these Appeals. They will be dealt with as and when occasion arises. 5. It is true that this is a case of pure and simple title to the suit wall set up by the plaintiff, denied by the defendants and the Court accepting the case of the plaintiff regarding title to the entire suit wall but holding that the defendants have perfected their title by adverse possession to a portion of the disputed wall to an extent of 10 . The first and serious contention raised by Mr. Harinath, learned Advocate for the appellant is that the defendants were not entitled to have any other benefit of plea or defence like adverse possession or easement etc., when they specifically set up their counter title to the disputed wall and failed. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit house in his own right and remained in possession as owner. The Appellant is only a benamidar. Therefore his plea is based on his own title. He never denounced his title nor admitted the plea of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised in the written statement. No explanation for the belated plea was given...... Therefore, a proper understanding of the precedent and the law laid down therein is that in case of defendants setting up counter title, alternative plea of adverse possession or any other plea is available. But if no alternative plea is raised or belatedly raised, then the question to be decided by the Court is, whether such a plea can be allowed either by amendment or by other reasons. It cannot be taken from such a pronouncement that an absolute rule, is laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated results. Possibly the parties and the learned Advocates representing them will assist the Court in doing that. That is how the Hon'ble Supreme Court has dealt with the interpretation of pleading in clear expressions any number of times. In Madan Gopal Kanodia v. Mamraj Maniram, it was pointed out that the Courts should not construe the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial ground. In K.C. Kapoor v. Smt. Radhika Devi, it was cautioned that pleadings are not to be construed in a hyper-technical manner; what is to be seen is whether the allegations gave sufficient notice to the plaintiffs of what case they had to meet. In S.B. Noronah v. Prem Kumari, a note of guideline was struck in the expressions- Pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed. Law should not be stultified by Courts by sanctifying little omissions as fatal flaws. Parties win or lose on substantial questions, not on technical tortures , and Courts cannot be abettors Broadly stated in this background, pleadings should receive a liberal construction, as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, as guided by the settled legal position, it is for the Court to consider whether on the basis of such facts pleaded or proved law if any can be operated upon them to render full justice. However, the prejudice to one or other parties for failure to plead will be considered always. If the facts themselves were absent in this case regarding the existence of the rafters and other portions of the adjacent building either on the suit wall or adjacent to it, then it was not open to the Court to draw inferences of law and to apply the rule of adverse possession or easement or prescription etc., as the case may be. Therefore, in this case it is still open to consider whether the finding of the Courts below, that the defendants have perfected their title by adverse possession to a portion of the suit wall, is correct or not. Mr. Harinath, learned Counsel for the appellant is no doubt right in contending that the defendants cannot be permitted to set up conflicting pleas so as to prejudice the case of the plaintiff. It equally applies to the plaintiff as against the defendants. His reliance on a pronouncement of our Court in Yarlagadda Venkanna Chowdary (dead) v. Daggubati Lakshmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the plaintiff's wall viz., the suit wall has been there continuously for a period of 60 years, on the date of the suit. In other words, the building or structures of the defendants have taken the support of the suit wall for a long period. It is not clear from the findings or the materials of the defendants that any such right at any time was specifically exposed or notified to the plaintiff positively or affirmatively. Admittedly the parties are closely related and such State of affairs appears to be in existence since the time of their ancestors. It is nobody's case nor there is evidence to show that the plaintiff or his ancestors in title or predecessors objected or opposed for such a user by the defendants or their ancestors or predecessors in title. It is not in evidence nor there is any finding that the plaintiff exercised any diligence of express inspection or implied examination of the state of affairs on the wall, if not on the other side of the wall. Such construction of the defendants apart from inserting the rafters of the roof into the wall of the plaintiff could not have happened over-night, particularly the parties being related, perhaps at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an extent, because such state of affairs have been there continuously and openly for more than 12 years. Mr. Harinath, learned Counsel for the appellant stoutly opposes this proposition. 11. To start with, we can deal with the precedents which support the findings of the Courts below and also the contention of the learned counsel for the respondents since the cases are disposed of on that basis. In State of Indoor case19, the defendants built a three storeyed verandah projecting over the land of the plaintiff and further opened some windows, which were said to invade the privacy of the plaintiff's house. The trial Court found that the verandahs were constructed more than 12 years, but less than 20 years ago and as it was also held that the verandah constituted a dispossession of the plaintiff, it followed that the defendant had matured his title by this adverse' possession and accordingly the suits were dismissed. While following the view of the Bombay High Court in Chotalal's case (10 supra) and disagreeing with the other decisions in Mulia Bhana's case (11 supra), Kashibhai Kalidas and Chaganlal's case (12 supra), it was held that since the space above t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs' wall and thus it engulfed the belt and a portion of the wall rested on the tiles of the southern eave of the plaintiffs' eastern gallery on a space measuring 11/2 x 1 and the Division Bench referring to the observations and discussions of the learned author Joshi in his Easements and Licenses (2nd Edition of 1948 at pages 399 and 400) observed and adopted the view as follows:- Where a right to occupy the space of another owner by means of a projection has been acquired, the claimant of the right gets a full title to the space under his direct occupation without his having any claim on anything else beyond. Thus acquisition of a right to project beams cannot extend beyond the protrusion of the beams themselves. There can be no title to the space either above or below the beams. It was held that they had acquired no right above or below the intrusion but only the portion where the support was taken. In Pazaniandi Bakthar (22 supra) case, referring to Rathinavelu Mudaliar's case (20 supra) and Tilokchand's case (16 supra), it was held that the adjacent owner is entitled to build above and below a projection where the person from whose property the str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Courts have conflicted in their own views, sometimes even without reference to the earlier rulings. Broadly stated, the simple question involved in such a situation was whether the encroachment or the construction by over-hanging, by support or otherwise by the adjacent owner or the possessor of a building was for a continuous period and longer than 12 years: etc., amounted to encroachment on the very sub-soil below the encroachment or the space above the encroachment to ripen into perfection of title by adverse possession or merely a right of easement. Two broad views were taken in such a situation one in favour of the former and second in favour of the latter. In Subbarayalu v. Subbaramaiah, (1956) An.W.R. 32. (NRC) our own High Court on facts held that the defendants who were discharging rain water into the neighbour's lane through eaves resting on easement-holder's wall, while construing whether such easement right also carries with it an accessory easement or right to enter on the neighbour's lane to effect repairs to the wall, it was held in the affirmative. This pronouncement may not be useful to the facts and circumstances of this case. At the same time, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght let alone absolute, pure and simple right, that should be termed as title within the concept subject to the duty on the part of the plaintiff to obey it and submit to it. But the classification of right and its definition will put the parties to the rights and duties for the purpose of obligations or liabilities. To restrict it either to the particular space or portion of the property or below or above etc., would be too conservative idea of the true implications of law. Therefore, most of the precedents stated above dealing with the question cannot be taken to have decided the implications in its true sense of the term. They are to be taken as dealing with the cases with reference to the facts and circumstances established or presuming incidental question to declare the law. To conclude, perfection of title by adverse possession, establishment of right by easement or by prescription, would be within the meaning of the word 'title' as stated above. The emphasis is also on the ground of the pleadings. In that regard the defendants stated ' that they have title to the suit wall portion of which may be due to several reasons, not specifically incorporated in the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no plea of adverse possession. The suit was based on title. The defendants while denying the title of the plaintiffs categorically set up continuance of title with them in the written statement. In such a situation while drawing a lucid distinction between 'adverse possession' and 'prescription', it was stated as hereunder:- The legal and lucid distinction between the doctrines of 'adverse possession' and 'prescription' appears to be well established. Adverse possession' means: The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor....... The statute of limitation is the source of title by adverse possession........ The adverse possession must be actual, continued, visible, notorious, distinct and hostile. (Pages 152 and 153 of Bouvier's Law Dictionary Vol.1, 3rd Revision 1914) Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e precedents supra, we are able to gather much guidance from the implications of the Easements Act except Section 4 of the Easements Act. When we have eliminated the possibility of the defendant establishing title by adverse possession in this case not merely for want of pleading or proof of ingredients of the same, we are only left with the question whether the defendants have got any other type of right like easement or prescription. In the considered opinion of this Court, when such topics have been codified in Easements Act, (Act 5 of 1882) (for short the Act) unless there are any precedents to interpret the implications of the provisions, we are to deal with them as they have been explained or expressed therein. On a perusal of the relevant provisions of the Act, we do not find any specific, categoric or contextual provision therein to call such a situation as the title or perfection of title by adverse possession. The user of a property by a person belonging to another person in the manner as in the present case has not been classified as one of the right of title or adverse possession. They are still in the region of jurisprudence or in the law of Limitation. Broadly stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the dominant owners. In view of the clear definition of 'easement' Under Section 4 of the Act, the right of support of the defendants read with Section 15 of the Act could be never but an easement in the first instance and easement by prescription or prescriptive easement in, the second instance. There cannot be any doubt that the defendants' user of the suit wall for such a long time has ripened into a right to call it title in that sense and not in the ordinary sense and .that right has assumed the character of an easement as of right not as of licence or permission. It is styled as a legal right (Page 55 of B.B. Katiyar's Law of Easements and Licences). Sometimes the right of support is classified as a negative easement and sometimes as a positive easement. This case appears to be a case of positive easement where the suit wall is used for the support of the building and structures of the defendants for a long time without any interruption. The right of support within the meaning of Section 4 of the Act in this case should be extended to the adjacent building including the wall, viz., adjacent building, if any, belonging to the plaintiff. 'Easements of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement by adverse possession and to an easement therein by prescription. (Page 298 of B.B. Katiyar's Law of Easements and Licences, Supra). It must be emphasised that in view of Sections 25 and 26 of the Limitation Act and the relevant articles fixing the period of limitation depending upon the nature of the suit, it is appropriate to mention that the plea of adverse possession is always open subject to pleading and proof and subject to other limitations in law interpreted by the Supreme Court in the precedents stated above. It is said that the Indian law relating to easements of support is codified in Sections 4, 7 and 15 of the Easements Act. The essential conditions for acquisition of right of support as an easement are - (i) that the right must be enjoyed peaceably and openly; (ii) that the right must be enjoyed as an easement; (iii) and the right must have been enjoyed without interruption for the full period of 20 years. (these conditions are fully satisfied in this case) In the nature of the contentions raised on behalf of the appellant, it is possible to think that the easement of support to a building by land by virtue of Sections 7 and 15 of the Ease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the provisions of the Easements Act and the settled law in that regard. If such principles are adopted, it may lead to anmalies, if not injustice to one or the other party in the suit. If in all cases, perfection of title by adverse possession is applied by mere hyper-technical interpretation that the intrusion or encroachment covers the sub soil and the space above or below the encroachment or intrusion, it would destroy the title and ownership of the servient owner and that is not the spirit and the true implications of an easement and prescription Under Section 4 and 15 of the Easements Act. If a view that extension of such a right is to extend only to the portion of the encroachment, insertion etc., is taken that will destroy the right of easement or prescription as a whole. The best illustration is the present case. Rafters of the building of the defendant are inserted in a portion of the disputed wall whereas some sheds put up by them are abutting and covering a portion of the wall belonging to the plaintiff. That is also only to the extent of a portion of the wall, which is clearly stated in the Judgments of the Courts below, and nothing beyond that. Presuming that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, by trial Court, failing which he shall not be entitled to have the benefit of the decision in this appeal. 17. In the result, the appellant succeeds. The appeals are allowed. The Judgments and decrees of the Courts below are set aside and they are modified in the following terms: OS. No. 341/88 is decreed in favour of the plaintiff against the defendants for permanent injunction restraining the defendantail from in any way interfering with the raising of the height of the 14 wall constructed to the west of FG wall and also raising of the newly added wall constructed to the north of GJ wall and in making constructions over the said newly added wall. 18. Furthermore, OS. No. 195/74 is decreed to the effect declaring that the wall HJV belongs to the plaintiff. It is made clear that such a right of the plaintiff is subject to the rights of the defendants by prescriptive easement which are elaborately dealt with in the Judgment and without detrimental to such rights and interests of the defendants. It is also made clear that the plaintiff shall not do anything in dealing with his wall as above so as to cause obstruction or damage or affecting the rights of the defendants in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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