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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 41 of 2015

Reserved on: 9.12.2025

Date of Decision: 1.1.2026.

Pyar Singh Kanwar ...Petitioner

Versus

State of HP ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : Ms Sheetal Vyas, Advocate.

For the Respondent/State : Mr Lokender Kutlehria,

Additional Advocate General.

Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 5.12.2014, passed by learned Additional Sessions Judge-II,

Shimla, District Shimla (learned Appellate Court), vide which

the judgment of conviction dated 22.12.2009 and order of

sentence dated 23.12.2009, passed by learned Judicial Magistrate

First Class, Court No. 5, Shimla, District Shimla (learned Trial

Court) were upheld. (Parties shall hereinafter be referred to in the

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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same manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present

petition are that the police presented a challan against the

accused before the learned Trial Court for the commission of

offences punishable under Sections 336 and 427 of the Indian

Penal Code (IPC). It was asserted that the informant, Ganga Ram

(PW3), had constructed two storeys of RCC and had laid eight

pillars for the third floor. He had rented three rooms to Babli

Thakur, who was running a shop for tyre puncture and a hotel.

Accused Piar Singh started raising construction on his four

biswas of land. He constructed eight pillars. He employed an

excavator on 11.5.2005 for cutting the hill. The excavator caused

damage to the informant’s house. Accused Piar Singh told the

informant about the damage on 12.5.2005. The informant went

to the spot and found that the wall had collapsed. The informant

told Krishan Lal (PW4) and Prem Chand (PW8) about the

damage caused to his house. The accused assured to compensate

the informant, but he failed to honour his promise. Babli Thakur

had also removed his articles after the damage. The excavator

employed by the accused also caused damage to the houses of

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Gopal Dutt Gupta (PW5) and Kishori Lal Gupta (PW1). The

matter was reported to the police. The police recorded the

informant’s statement (Ex.PW3/A) and sent it to the Police

Station, where FIR (Ex.PW7/A) was registered. HC Padam Dev

(PW7) investigated the matter. He visited the spot and prepared

the site plan (Ex.PW7/C). He took the photographs (Ex. P1 to Ex.

P14), whose negatives (Ex. P15 to Ex. P28). He filed an

application (Ex.PW7/B) for obtaining Tatima and Jamabandi.

Nand Lal (PW2) issued Tatima (Ex. PW2/A) and Jamabandi (Ex.

PW2/B). HC Padam Dev filed an application (Ex.PW7/E) for

seeking the expert opinion. Surinder Sharma (PW6) visited the

spot and prepared a report (Ex.PW6/A), which was forwarded to

the police vide memo (Ex.PW6/B). The statements of witnesses

were recorded as per their version, and after the completion of

the investigation, a challan was prepared and presented before

the learned Trial Court.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of offences

punishable under Sections 427 and 336 of the IPC, to which he

pleaded not guilty and claimed to be tried.

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4. The prosecution examined eight witnesses to prove

its case. Kishori Lal (PW1) is the informant. Nand Lal (PW2)

issued the Tatima and Jamabandi. Ganga Ram (PW3) and Gopal

Dutt (PW5) are the owners of the building located in the vicinity.

Krishan Lal (PW4) and Prem Chand (PW8) were told about the

incident. Surinder Sharma (PW6) issued an expert opinion. HC

Padam Dev (PW7) investigated the matter.

5. The accused, in his statement recorded under Section

313 of Cr.P.C., denied the prosecution’s case regarding digging

and consequent loss. He stated that he had not carried out any

excavation. The excavator was employed by Ganga Ram. His

land and the land of Ganga Ram are located adjacent to each

other, and they are not on the higher and lower plains. He stated

that he wanted to lead defence evidence, but did not produce any

evidence.

6. Learned Trial Court held that the defence of the

accused was contradictory. The strata of land on the spot were

loose, and the accused was required to take necessary steps to

prevent the landslide. The witnesses consistently stated that the

landslide had occurred due to the excavation carried out by the

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excavator employed by the accused. The report of the expert

showed the extent of damage. Therefore, the accused was

convicted of the commission of offences punishable under

Sections 336 and 427 of the IPC and was sentenced as follows: -

Under Section 336 of IPC To suffer simple imprisonment for 15

days.

Under Section 427 of IPC To suffer simple imprisonment for 15

days, and pay a fine of ₹500/-.

Both the substantive sentences of imprisonment were ordered to run

concurrently.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused filed an appeal, which was

decided by the learned Additional Sessions Judge-II, Shimla

(learned Appellate Court). Learned Appellate Court concurred

with the findings recorded by the learned Trial Court that the

accused had employed an excavator to carry out the excavation,

which led to the collapse of the informant’s house. The accused

acted negligently by carrying out the excavation work. Learned

Trial Court had rightly convicted the accused. The sentence

imposed by the learned Trial Court was adequate, and no

interference was required with it. Hence, the appeal was

dismissed.

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8. Being aggrieved by the judgments and order passed

by the learned Courts below, the accused has filed the present

revision, asserting that the learned Courts below erred in

appreciating the material placed on record. The accused had no

intention to cause harm to any person. He was raising the

construction of his house on the land owned by him. Surinder

Sharma (PW6) specifically admitted that there was no

possibility of any damage to the informant’s house by the

excavation carried out by the accused. He was an engineer, and

his statement was wrongly ignored by the learned Courts below.

The informant was directed by the Court to construct a retaining

wall to prevent damage to his house and the land of others, but

he failed to do so, which led to damage to the house. The police

did not join any independent witnesses residing in the vicinity.

No person deposed that strata of the land were loose, which

were destabilised by the excavation. Therefore, it was prayed

that the present revision be allowed and the judgments and

order passed by the learned Courts below be set aside.

9. I have heard Ms Sheetal Vyas, learned counsel for the

petitioner/accused, and Mr Lokender Kutlehria, learned

Additional Advocate General for the respondent/State.

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10. Ms Sheetal Vyas, learned counsel for the

petitioner/accused, submitted that the learned Courts below

erred in appreciating the material on record. The statement of

Surinder Sharma (PW6) proved that any excavation done by the

accused could not have caused damage to the informant’s

property because the land of the accused and the informant are

located adjacent to each other and not on different levels. The

offences punishable under Sections 427 and 337 of the IPC

require different mens rea and cannot be committed in the

course of the same transaction. Therefore, she prayed that the

present revision be allowed and the judgments and order passed

by the learned Courts below be set-aside. She relied upon the

judgment of this Court in Sudarshana Devi Vs. State of HP,

Cr.MMO No. 201 of 2022, decided on 4.9.2024 in support of her

submission.

11. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that the learned

Appellate Court had properly appreciated the evidence on

record, and this Court should not interfere with the concurrent

findings of fact recorded by the learned Courts below. Therefore,

he prayed that the present revision be dismissed.

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12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon’ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional

court is not an appellate court and it can only rectify the patent

defect, errors of jurisdiction or the law. It was observed at page

207:-

“10. Before adverting to the merits of the contentions, at

the outset, it is apt to mention that there are concurrent

findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence

brought on record. The High Court in criminal revision

against conviction is not supposed to exercise the

jurisdiction like the appellate court, and the scope of

interference in revision is extremely narrow. Section 397

of the Criminal Procedure Code (in short “CrPC”) vests

jurisdiction to satisfy itself or himself as to the

correctness, legality or propriety of any finding, sentence

or order, recorded or passed, and as to the regularity of

any proceedings of such inferior court. The object of the

provision is to set right a patent defect or an error of

jurisdiction or law. There has to be a well-founded error

that is to be determined on the merits of individual cases.

It is also well settled that while considering the same, the

Revisional Court does not dwell at length upon the facts

and evidence of the case to reverse those findings.

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14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

1294, wherein it was observed at page 695:

“14. The power and jurisdiction of the Higher Court under

Section 397 CrPC, which vests the court with the power to

call for and examine records of an inferior court, is for the

purposes of satisfying itself as to the legality and

regularities of any proceeding or order made in a case.

The object of this provision is to set right a patent defect

or an error of jurisdiction or law or the perversity which

has crept in such proceedings.

15.It would be apposite to refer to the judgment of this

Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460:

(2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where scope

of Section 397 has been considered and succinctly

explained as under: (SCC p. 475, paras 12-13)

“12. Section 397 of the Code vests the court with the

power to call for and examine the records of an

inferior court for the purposes of satisfying itself as

to the legality and regularity of any proceedings or

order made in a case. The object of this provision is

to set right a patent defect or an error of jurisdiction

or law. There has to be a well-founded error, and it

may not be appropriate for the court to scrutinise

the orders, which, upon the face of it, bear a token of

careful consideration and appear to be in accordance

with law. If one looks into the various judgments of

this Court, it emerges that the revisional jurisdiction

can be invoked where the decisions under challenge

are grossly erroneous, there is no compliance with

the provisions of law, the finding recorded is based

on no evidence, material evidence is ignored, or

judicial discretion is exercised arbitrarily or

perversely. These are not exhaustive classes, but are

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merely indicative. Each case would have to be

determined on its own merits.

13. Another well-accepted norm is that the

revisional jurisdiction of the higher court is a very

limited one and cannot be exercised in a routine

manner. One of the inbuilt restrictions is that it

should not be against an interim or interlocutory

order. The Court has to keep in mind that the

exercise of revisional jurisdiction itself should not

lead to injustice ex facie. Where the Court is dealing

with the question as to whether the charge has been

framed properly and in accordance with law in a

given case, it may be reluctant to interfere in the

exercise of its revisional jurisdiction unless the case

substantially falls within the categories aforestated.

Even the framing of the charge is a much-advanced

stage in the proceedings under CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018) 8

SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

reappreciate the evidence and come to its conclusions in the

absence of any perversity. It was observed at page 169:

“12. This Court has time and again examined the scope of

Sections 397/401 CrPC and the grounds for exercising the

revisional jurisdiction by the High Court. In State of Kerala

v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC

452: 1999 SCC (Cri) 275, while considering the scope of the

revisional jurisdiction of the High Court, this Court has

laid down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can

call for and examine the record of any proceedings

to satisfy itself as to the correctness, legality or

propriety of any finding, sentence or order. In other

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words, the jurisdiction is one of supervisory

jurisdiction exercised by the High Court for

correcting a miscarriage of justice. But the said

revisional power cannot be equated with the power

of an appellate court, nor can it be treated even as a

second appellate jurisdiction. Ordinarily, therefore,

it would not be appropriate for the High Court to

reappreciate the evidence and come to its

conclusion on the same when the evidence has

already been appreciated by the Magistrate as well

as the Sessions Judge in appeal, unless any glaring

feature is brought to the notice of the High Court

which would otherwise tantamount to a gross

miscarriage of justice. On scrutinising the

impugned judgment of the High Court from the

aforesaid standpoint, we have no hesitation in

concluding that the High Court exceeded its

jurisdiction in interfering with the conviction of the

respondent by reappreciating the oral evidence. …”

13. Another judgment which has also been referred to and

relied on by the High Court is the judgment of this Court

in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,

(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held

that the High Court, in the exercise of revisional

jurisdiction, shall not interfere with the order of the

Magistrate unless it is perverse or wholly unreasonable or

there is non-consideration of any relevant material, the

order cannot be set aside merely on the ground that

another view is possible. The following has been laid

down in para 14: (SCC p. 135)

“14. … Unless the order passed by the Magistrate is

perverse or the view taken by the court is wholly

unreasonable or there is non-consideration of any

relevant material or there is palpable misreading of

records, the Revisional Court is not justified in setting

aside the order, merely because another view is

possible. The Revisional Court is not meant to act as an

appellate court. The whole purpose of the revisional

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jurisdiction is to preserve the power in the court to do

justice in accordance with the principles of criminal

jurisprudence. The revisional power of the court under

Sections 397 to 401 CrPC is not to be equated with that

of an appeal. Unless the finding of the court, whose

decision is sought to be revised, is shown to be

perverse or untenable in law or is grossly erroneous or

glaringly unreasonable or where the decision is based

on no material or where the material facts are wholly

ignored or where the judicial discretion is exercised

arbitrarily or capriciously, the courts may not interfere

with the decision in exercise of their revisional

jurisdiction.”

16. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

“16. It is well settled that in the exercise of revisional

jurisdiction under Section 482 of the Criminal Procedure

Code, the High Court does not, in the absence of

perversity, upset concurrent factual findings. It is not for

the Revisional Court to re-analyse and re-interpret the

evidence on record.

17. As held by this Court in Southern Sales & Services v.

Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it

is a well-established principle of law that the Revisional

Court will not interfere even if a wrong order is passed by

a court having jurisdiction, in the absence of a

jurisdictional error. The answer to the first question is,

therefore, in the negative.”

17. This position was reiterated in Sanjabij Tari v. Kishore

S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

“27. It is well settled that in exercise of revisional juris-

diction, the High Court does not, in the absence of perver-

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sity, upset concurrent factual findings [See: Bir Singh

(supra)]. This Court is of the view that it is not for the Re-

visional Court to re-analyse and re-interpret the evidence

on record. As held by this Court in Southern Sales & Ser-

vices v. Sauermilch Design and Handels GMBH, (2008) 14

SCC 457, it is a well-established principle of law that the

Revisional Court will not interfere, even if a wrong order

is passed by a Court having jurisdiction, in the absence of

a jurisdictional error.

28. Consequently, this Court is of the view that in the ab-

sence of perversity, it was not open to the High Court in

the present case, in revisional jurisdiction, to upset the

concurrent findings of the Trial Court and the Sessions

Court.

18. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

19. Learned Trial Court convicted the accused for the

commission of offences punishable under Section 336 and 427

of the IPC. Section 336 of the IPC requires negligence or

rashness, whereas Section 427 of the IPC, read with Section 425,

requires intent to cause wrongful loss or damage. The state of

negligence and deliberate intent cannot exist simultaneously.

Therefore, it was not possible to convict the accused for doing

an act negligently as well as deliberately.

20. The terms rashness or negligence were explained by

the Hon’ble Supreme Court in Mahadev Prasad Kaushik v. State of

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U.P., (2008) 14 SCC 479: (2009) 2 SCC (Cri) 834: 2008 SCC OnLine

SC 1551, at page 487: -

26. Though the term “negligence” has not been defined in

the Code, it may be stated that negligence is the omission

to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the con-

duct of human affairs, would do, or doing something

which a reasonable and prudent man would not do.

25. In Empress of India v. Idu Beg [ILR (1881) 3 All 776]

Straight, J. made the following pertinent observations

which have been quoted with approval by various courts,

including this Court: (ILR p. 780)

“… criminal rashness is hazarding a dangerous or

wanton act with the knowledge that it is so, and that

it may cause injury, but without intention to cause

injury, or knowledge that it will probably be caused.

The criminality lies in running the risk of doing such

an act with recklessness or indifference as to the

consequences. Criminal negligence is the gross and

culpable neglect or failure to exercise that reasonable

and proper care and precaution to guard against in-

jury either to the public generally or to an individual

in particular, which, having regard to all the circum-

stances out of which the charge has arisen, it was the

imperative duty of the accused person to have

adopted.”

21. The informant, Kishori Lal, stated that the accused

employed an excavator, which caused extensive damage to his

land and the house. The damage was also caused to the house of

Ganga Ram. Cracks developed in three storeyed house of Gopal

Dutt.

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22. This witness has not stated that the accused had

encroached upon his land. His simple case is that the accused

carried out the excavation, which caused damage to his house.

Bombay High Court held in Rasiklal Manilal Bhatt v. Savailal

Hargovindas Sur, 1954 SCC OnLine Bom 108: AIR 1955 Bom 285

that the land in an unburdened state is entitled to a natural right

of support, but the land in a burdened state requires the

acquisition of the right of support by easement. It was observed

at page 286:

“6. The Explanation to ill (e) under S. 7(b), Indian Ease-

ments Act is relevant on this point. This Explanation

shows that land is in its natural condition when it is not

excavated and not subjected to artificial pressure, and

that the “subjacent and adjacent soil” mentioned in this

illustration means such soil only as in its natural condi-

tion would support the dominant heritage in its natural

condition. In other words, the effect of the illustration

read in the light of the Explanation is that the right which

is referred to in S. 7(b) is applicable only to the land in its

unburdened and natural state; it is not applicable to the

structure built on the land. That is not to say that a simi-

lar right cannot be acquired by such a structure. But it is

not a natural right, and if the structure intends to claim

such a right, it would be only by a process of prescription.

If on his land the plaintiff had built his structure and the

structure had stood for the statutory period of twenty

years, then it may have been open to the plaintiff to allege

that the right to receive support from the adjoining plot

of the defendant had been acquired by the plaintiff's wall

by prescription, and if in such a case the said right had

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been impaired or diminished, the plaintiff may have had a

cause of action.

7. But it is not even alleged in the plaint that the wall has

acquired such a right by prescription. Indeed, on the alle-

gations made in the plaint and on the evidence adduced in

this case, it does not appear to be in doubt that the wall in

question was built in 1945, and therefore there can be no

question of prescriptive acquisition of the right in respect

of the wall. Therefore, in my opinion, looking at S. 7(b)

and ill. (e) and the Explanation appended to it, it is diffi-

cult to accept the conclusion of the Courts below that, be-

cause the plaintiff's land in its unburdened and natural

state was entitled to receive support from the defendant's

land, the same right can be claimed by the wall which the

plaintiff had built.

8. This conclusion receives support from the statement of

the law to be found in Halsbury on this subject. Dealing

with the natural rights to support, Halsbury observes that

(Vol. II, p. 362)

“every owner of land has ‘ex jure natureae’, as an inci-

dent of his ownership, the right to prevent such use of

the neighbouring land as will withdraw the support

which the neighbouring land naturally affords to his

land”.

9. The same principles apply, according to Halsbury, both

to lateral or adjacent support from adjoining land, as also

to the subjacent support of underlying strata where the

surface of the land and the strata beneath it are different

freeholds and belong to different owners, and to the right

of the owner of a subterranean stratum to the support of

the further strata beneath. Then Halsbury refers to the

support for buildings by land, and he observes that the

owner of land has no natural right to support for build-

ings or of the additional weight which the buildings

cause, and that support to that which is artificially im-

posed upon land cannot ‘exist ex jure natureae’ because

the thing supported does not itself so exist. Then it is

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added that though no natural right can be claimed in re-

spect of artificial structures, that does not prevent the

owners of such artificial structures from acquiring such

rights by the process of prescription.

10. The judgment of the House of Lords in — ‘Dalton v.

Angus’, 1881-6 AC 740 (A), is always cited in this context

as the leading judgment on the subject. In this case, the

question which arose directly for decision was whether a

building can acquire a right to lateral support from ad-

joining land by 20 years' uninterrupted enjoyment, and it

was held that such a right can be acquired by prescription.

While laying down the proposition that a right to receive

lateral support may be acquired by a building by 20 years'

user in the manner required by law, that is to say openly,

continuously and without interruption, Lord Penzance

was at pains to emphasize that “at any time within

twenty years after the house is built the owner of the ad-

jacent soil may with perfect legality dig that soil away,

and allow his neighbour's house, if supported by it, to fall

in ruins to the ground.”

11. This will illustrate the sharp distinction between the

right which is natural and which is available in respect of

land in its natural and unburdened form, and a right

which is acquired in respect of a structure built on the

land. Whereas the right in respect of the land in its un-

burdened and natural form is properly so called, a natural

right, the right in respect of the building is an artificial

right which is acquired by the artificial process of pre-

scription.

23. It was laid down by the Kerala High Court in

Gopalakrishna Panicker Versus Thirunakkara Devaswom, AIR 1959

Kerala 202, that in the absence of any right of easement, any

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damage to a person’s house is not actionable in law. It was

observed: -

“10. We see a very great force in this contention of Mr

Sivasankara Panicker. In fact, the trial Court has stated

that an extreme contention was advanced on behalf of the

defendants' counsel that a person putting up a wall at the

extremity of his compound, does so at his own risk and

that he cannot be heard to complain of any damage if the

neighbour digs in his own land in the absence of an

easement of support acquired by prescription or grant.

11. Again, the learned Judge has stated that the question,

which was canvassed at the bar, namely, that the natural

right of lateral support extends only to land in its

unburdened state and not to any artificial pressure put

upon it, is only of academic interest in that case.

12. No doubt, the position contended for may be very

extreme, but it does get some support in law, and we get

useful guidance from the provisions of the Indian

Easements Act. Section 7 of the Act gives an exclusive

right to every owner of immovable property to enjoy and

dispose of the same, etc. The said section also gives a

right to every owner of immovable property to enjoy

without disturbance by another natural advantage arising

from its situation. In this case, the finding of the learned

Judge on the evidence is that the defendant's land is about

10 feet lower than that of the plaintiff.

13. Illustration (e) to Sec. 7 and the Explanation is as

follows :

"The right of every owner of the land, that such

land in its natural condition shall have the support

naturally rendered by the subjacent and adjacent

soil of another person.

EXPLANATION: Land is in its natural condition

when it is not excavated and not subjected to

artificial pressure; and the "subjacent and adjacent

soil" mentioned in this illustration means such soil

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only as, in" its natural condition, would support the

dominant heritage in its natural condition.

It is clear that the plaintiffs’ land in its natural condition

will have the support naturally rendered by the

defendants' land. The explanation also makes it clear that

land, to have this right, should not have been subject to

artificial pressure. There is evidence in this case that the

compound wall, which is now stated to be affected, was

only constructed about 10 years prior to suit, that is,

about 1914. If so, we will have to see whether the plaintiff

has got any further rights.

There again we have to look up to Sec 15 of the Act, which

provides that lands, subject to artificial pressure,

receiving support from another person's land, should

have had that benefit without interruption for 20 years

and that 20 years must expire 2 years before the

institution of the suit. It is not certainly the plaintiff's

case that he has acquired any such right. Therefore, in

view of these provisions, the learned Judge was not right

in disposing of the legal contention in that summary way

indicated above.

14. In view of the fact that the plaintiff, even on his own

case, has not been able to satisfy the provisions of

sections 7 and 15 of the Easements Act, the plaintiff's suit

must fail. In this view, we think it unnecessary to

consider the other contentions of the appellant.

24. Similarly, the Orissa High Court held in Bauribandhu

Patra and Another Versus Sagar Malla, AIR 1966 Orissa 86, that

damage caused to the house is not actionable in the absence of

any right of easement. It was observed:-

“2.… The submission made by the learned counsel

appearing for the defendants is that the court below, in

relying on the quotation from the Law of Torts by R.L.

Ananda and Sastri, has erred in not appreciating that the

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law as stated therein relates to a condition where the land

is in its natural state and is not encumbered or burdened

by any structure or building. Therefore, in a case, as the

one here, where the land of the plaintiff was burdened by

the structures, the rule of law as laid down in those

quotations will have no application. In my opinion, this

submission made by the learned counsel for the

defendants is both on principle and authority correct. In

the present case, both the Courts below have proceeded

on the footing that the plaintiff has not acquired any right

of easement or prescription in respect of the lateral

support from the lands of the defendants, nor has he

founded his claim on the basis of any easement or

prescription. As such, the action of the plaintiff can at

best be supported only on the ground of the natural right

of property. In that regard, it has been rightly stated by

Brindaban Katiar in his Law of Easement and Licenses

that,

"A man in exercise of his rights to property can

build even to the very extremity of his land and his

neighbour has no cause for complaint. . . . . .. If his

neighbour, also in exercise of his natural right of

property, digs to the very extremity of his land and

his building slips into the pit, he has only to thank

himself."

But the difficulty in the present case for the plaintiff is

that his land, as it now stands, is not in its natural state,

but is burdened by the boundary wall and also by the

building. Therefore, the natural right of property as

enunciated above in the aforesaid passage of Law of

Easement and License by Brindaban Katiar can have no

application to his case. The plaintiff can therefore succeed

only if he establishes that the additional burden that has

been thrown on his land as a result of the construction of

the building and the boundary wall thereon has been in

existence for more than 20 years, and as a result thereof,

he has acquired by now a right of easement or a

prescriptive right. Unfortunately, that is not the case,

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either set up or pleaded by him in the plaint. Therefore,

on the facts of this case, the claim made in the plaint

cannot succeed. The leading authority on the subject is

the case of Dalton v. Henry Angus and Co (1881) 6 AC 740.

This has been uniformly followed by the courts in India,

as is evident from the decisions in Gopalkrishna Panicker

v. Thirunakkara Devaswom, AIR 1959 Kerala 202, Rasiklal v.

Savai Lal, (s) AIR 1955 Bom 285, Ramgopal v. Gopikrishna,

AIR 1957 M.P. 227; Abdul Raheman v. Mulchand, AIR 1928

Nag 91 (1), and In re Athi Ayyar, AIR 1921 Mad 322 .

Therefore, in my opinion, the court below, in taking the

view that it is a case which can be founded on tort for

nuisance, has erred in law.

25. Calcutta High Court also held in Panchanan Mondal

and Another versus Sm. Sulata Roy Mondal, AIR 1980 Calcutta 325,

held that the existence of buildings upon the land does not

prevent the adjacent owner from withdrawing the right of

support in the absence of any right of easement. It was

observed:-

4. It has been contended on behalf of the appellants that

the pleader commissioner's report and deposition clearly

proved the plaintiffs' version. Reference has been made to

p. 273 of Gale on Easements, 13

th

Edn., to show that there is

no natural right to the support of a building per se.

Support to that which is artificially imposed upon land

cannot exist ex jure naturae because the thing supported

does not itself so exist. If, however, land has been affected

by the withdrawal of support and a building on it has also

been affected and it is shown that the withdrawal of

support would have affected the land in its natural state,

in other words, that the land has been deprived of its

natural right of support, damages may be recovered for

the consequent injury to the building. Halsbury's Laws of

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2026:HHC:28

England, 3rd Edn., Vol. 12, p. 606, has been referred to

show that the owner of land has no natural right to

support for buildings or of the additional weight which

the building causes. Support to that which is artificially

imposed upon land cannot exist ex jure naturae, because

the thing supported does not itself so exist. The mere fact

that there are buildings upon the land does not preclude

an owner from his right against a neighbour of the

subjacent owner, who acts in such a manner as to deprive

the land of support, so long as the presence of the

buildings does not materially affect the question, or their

additional weight did not cause the subsidence, which

followed the withdrawal of support. Section 7(b) of the

Indian Easements Act speaks of the right of every owner

of immovable property to enjoy without disturbance by

another the natural advantages arising from its situation.

Illustration (e) thereof says that the owner of land has the

right that such land, in its natural condition, shall have

the support naturally rendered by the subjacent and

adjacent soil of another person. The principles of that

Section apply to West Bengal. The evidence given by the

P.Ws. clearly supports the plaintiffs' version of damage to

the plaintiffs' land, wall and building by the defendant's

action.

5. The learned Advocate appearing on behalf of the

respondent has referred to the case of Ram Gopal v. Gopi

Krishna, AIR 1957 Madh Pra 227, where it has been stated

that there is a distinction between a natural right of

support to one's land in unburdened and natural state

from the adjacent and subjacent land of the neighbouring

owners and the right of support for buildings or

structures standing on the land. While the former right is

a natural incident of one's ownership of the land, the

right to support for building or structure on the land is an

easement and can be claimed only as an easement. If the

owner of a building has not acquired such a right of

casement of lateral support for his building from his

neighbour’s land, the neighbour would be within his

23

2026:HHC:28

rights in carrying on the excavation on his soil even if by

so doing damage is caused to the building of his

neighbour, provided, of course, there is no negligence in

the excavation operations.

6. Both sides referred to the leading case of Dalton v.

Angus in (1881) 6 AC 740. A question arose in that case

whether a building could acquire a right to lateral support

from adjacent land by 20 years' uninterrupted enjoyment.

It has been held that such a right could be acquired by

prescription. A right to receive lateral support may be

acquired by building for 20 years' use openly,

continuously and without interruption.

7. In the case of Bengal Provincial Ry. Co. v. Rajani Kanta

AIR 1936 Cal 564, the allegation was that the defendant

company had burrow pits on their own land for a long

time, and the plaintiffs had their hut near those pits. In

1927 or 1928, they replaced their hut with a masonry

building, which was raised close to the pits. In February

1930, the defendant company deepened the pit. But at

that time, no damage was caused to the plaintiffs'

building. After the rains had set in July 1930, the cracks

appeared in the building. So damages were asked for from

the railway company on account of damage caused to the

plaintiffs' building. It has been stated that the natural

right of support from a neighbour's land is available only

in respect of land in an unburdened and natural state. An

owner has no right to the support of his building or of his

land burdened with the additional weight of his building

unless such a right has been acquired as an easement. If

there is no easement to have such lateral support, the

neighbour is within their rights to make an excavation,

provided that he does not act negligently. If there is no

negligence, the plaintiff is not entitled to any damages

caused to his building.

8. In this case, the facts are almost identical because the

plaintiffs have alleged that after the defendant deepened

the ditch, no immediate damage was caused to their land,

wall or building. Only after the break of monsoon, i.e., in

the middle of Sravan 1373 B.S., a portion of the plaintiffs'

24

2026:HHC:28

land and the western portion of their wall were engulfed

by the tank. There is no finding by the courts below that

the defendant's act was negligent. So on that score alone,

the plaintiffs are liable to be non-suited.

9. There is yet another defect. In the case of Bengal

Provincial Ry. Co. v. Rajani Kanta (supra), there was no

evidence that the plaintiffs' land would have subsided

even if it had been in a natural state and unburdened with

their building by reason of the excavation made by the

defendant company. This principle was discussed in the

case of Ramgopal v. Gopikrishna (supra), cited on behalf

of the respondent. This case was also discussed by

Gajendragadkar, J., in the case of Rashiklal v. Savailal

reported in AIR 1955 Bom 285. It has been stated in that

case that the effect of Illustration (e) of Sec 7(b) of the

Easements Act is that the right, which is referred to in

that Section, is applicable only to the land in its

unburdened and natural state.

It is not applicable to the structure built on the land

unless there is a case of prescription. It may be stated that

though that Act does not apply to Bengal, the principles of

the Act nevertheless apply.

26. This position was reiterated in Jessy Raju v. Zacharia,

2011 SCC OnLine Ker 3747 : (2011) 3 KLT 809, wherein it was

observed at page 813:

11. Thus, the law is clear. Just like the right of a person to

construct a building or boundary wall up to the extremity

of his property, his neighbour also has the right to dig to

the very extremity of his property, provided the natural

right available to the neighbour is not infringed. But that

right is available only when the land is kept in its natural

condition. If the person has built structures on his land

and thereby added pressure on his property, the right of

lateral support for the artificial pressure so caused, the

natural right for the increased pressure cannot be

25

2026:HHC:28

claimed. It is to be acquired. Such right can be acquired

only as provided under S. 15 of the Indian Easement Act.

27. Therefore, the preponderance of judicial opinion is

that the land in a burdened state does not enjoy a right of

support in the absence of any easement of support. In the

present case, there is no evidence that the informant or any

other person had acquired the right of easement by prescription,

and the mere act of withdrawal of the support does not

constitute any breach of duty. Since the law does not oblige a

person to provide support to another’s property in a burdened

state; therefore, the prosecution's case that the accused was

negligent cannot be accepted.

28. There is no evidence that the accused had intended to

cause damage to the property of another, and the case is that the

accused had acted negligently; hence, the offence punishable

under Section 427 of the IPC is not made out.

29. Both the learned Courts below did not advert to the

provision of easement, and the judgments and order passed by

the learned Courts below cannot be sustained. Consequently,

they are ordered to be set aside, and the petitioner/accused is

acquitted of the charged offences. The fine, if deposited be

26

2026:HHC:28

refunded to the petitioner/accused after the expiry of the period

of limitation, in case no appeal is preferred, and in case of

appeal, the same be dealt with as per the orders of the Hon’ble

Supreme Court of India.

30. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the petitioner/accused is directed to furnish bail

bonds in the sum of ₹25,000/- with one surety in the like

amount to the satisfaction of the learned Trial Court within four

weeks, which shall be effective for six months with stipulation

that in the event of Special Leave Petition being filed against this

judgment, or on grant of the leave, the petitioner/accused on

receipt of notice thereof, shall appear before the Hon’ble

Supreme Court.

31. Records be sent back to the learned Courts below

forthwith, along with a copy of the judgment.

(Rakesh Kainthla)

Judge

1

st

January, 2026

(Chander)