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1992 Supreme(P&H) 862
PUNJAB & HARYANA HIGH COURT
A.L.Bahri, J.
Gajja Singh
Versus
Mohinder Singh And Ors.
Regular Second Appeal No. 1539 of 1979,
Decided On : SEPTEMBER 17, 1992
An owner has the right to support his land and can seek an injunction to protect this right, even if the pecuniary loss resulting from the defendant's wrongful acts is small. However, the plaintiff must prove that the interference with the right is of a substantial nature or that injury is imminent and certain to result from the defendant's act.
Headnote:
INJUNCTION - RIGHT TO SUPPORT - ACT-SECTION NOT REFERRED - An owner has the right to support his land and can seek an injunction to protect this right, even if the pecuniary loss resulting from the defendant's wrongful acts is small. However, the plaintiff must prove that the interference with the right is of a substantial nature or that injury is imminent and certain to result from the defendant's act.
Fact of the Case:
Plaintiff Gajja Singh filed a suit for a permanent injunction restraining Mohinder Singh and others from digging earth from their land just up to the plaintiff's land. The plaintiff claimed that the defendants' digging operations would cause irreparable loss to his fields.
Finding of the Court:
The trial court and the lower appellate court dismissed the plaintiff's suit, holding that he had failed to prove any loss by digging of the earth from the adjoining fields and, thus he was not entitled to the injunction prayed.
Issues: Whether the plaintiff is entitled to the injunction prayed for on the facts alleged in the plaint?
Ratio Decidendi: The court held that the plaintiff was not entitled to an injunction because he had not proven that the defendants' digging operations would cause any damage to his land. The court also noted that the plaintiff had the right to protect his own land by doing any act which is necessary either by raising a supporting wall or just by raising a mound around his own land.
Final Decision: The court dismissed the plaintiff's appeal.
A.L.Bahri, J.
1. This Second Appeal is by plaintiff Gajja Singh, whose suit was dismissed by both the Courts below. He filed a suit for grant of permanent injunction restraining Mohinder Singh and others from digging earth from their land just upto the land of the plaintiff. The plaintiff claimed to be owner in cultivating possession of land comprising killa Nos. 4, 5, 6/1 and 7/1 in village Barsalpur, district Ropar. The land of defendant Nos. 2 to 12 adjoins his land. Mohinder Singh defendant No. 1 was running a brick-kiln in killa Nos. 6/2, 15 and 16/1, which are adjoining towards south the fields of the plaintiff. Mohinder Singh had taken the land from defendant Nos. 2 to 12 for the purpose of digging earth for moulding the bricks. The defendants were intending to dig earth upto the depth of 5 to 6 feet, which was likely to cause irreparable loss to the fields of the plaintiff.
2. The defendants contested the suit. Defendant Nos. 2 to 12 claimed to be owners of the adjoining land and having given the same on lease to defendant No. 1, who was to dig earth for manufacturing bricks. The brick-kiln was installed about seven years ago and there was no objection to the installation thereof. The plaintiff was, thus, estopped to object to the working of the same. No damage was caused to the plaintiffs land by the digging of earth. The plaintiff did not disclose the nature of the damage. The defendant, owner of the brick kiln also took land from one Jaimal Singh of village Despura and dug earth upto the last inch. The land of Jaimal Singh aforesaid adjoins the other land of the plaintiff. Defendant No. 1 also contested the suit, inter-alia, alleging that the owners of the adjoining land cannot be restrained from making use of the land in any manner, which suited them. The suit was barred by res judicata.
3. The following issues were framed on the pleadings ;-
(1) Whether the plaintiff is entitled to the injunction prayed for on the facts alleged in the plaint ? OPP.
(2) Relief.
4. The trial Court decided issue No. 1 against the plaintiff, inter-alia, holding that the plaintiff had failed to prove any loss by digging of the earth from the adjoining fields and, thus he was not entitled to the injunction prayed. The lower appellate Court affirmed the finding aforesaid and dismissed the appeal.
5. Learned counsel for the appellant has argued that there is an inherent right to protect his land from being wasted by the acts of owners of the adjoining land and the plaintiff was entitled to the relief asked for, as by digging earth upto the last inch the land of the plaintiff would give-way and rich soil would flow towards the land of the defendants, where digging operations were going-on. In support of this contention reliance has been placed on two decisions of the Calcutta High Court :-
- Krishna Lal Saha Chaudhury and Ors. v. Radhika Mohan Dass A. I. R. 1931 Cal. 462. and Tamluk Trading and Manufacturing Co. Ltd., v. Nabadwipchandra Nandi, A. I. R. 1931 Cal. 542. On going through the facts and the ratio of the decisions aforesaid, I am afraid no benefit can be derived by the appellant therefrom. In Krishna Lal Sahas case, the position was entirely different. The question related to measure of damages caused by a trespasser that it was observed as under :--
"It is only where no adequate compensation could otherwise be given that a decree for restoration should be passed, especially in a case where the cost of restoration is much more than the depreciation in the value of the land."
In Tamluk Trading & Manufacturing Companys case to some extent the question involved was identical with respect to the owners right to support his land and the matter was discussed. It was observed as under :-
-
"An owners right to support will be protected by an injunction when the interference with the right is of a substantial nature even though the pecuniary loss actually resulting from the defendants wrongful acts is small. The Court will also in
