Sunil Kumar Poddar vs Hoare Miller and Company Ltd.

P.B. Mukharji, J.—This suit illustrates the growing complexities of facts and law from sky-scrapers and multi-storied buildings now going up in the city of Calcutta. I shall deal with the significant points of law involved here under issues 4 and 8, after I have disposed of the facts.

In this suit the Plaintiffs Sunil Kumar Poddar and Anil Kumar Poddar, a minor by his mother, natural guardian and next friend Sm. Sabitri Poddar, are suing the Defendant Hoare Miller & Company Ltd. for a perpetual injunction restraining the Defendant, its agents, servants and assigns from carrying on or continuing further works of construction in its multi-storied building at premises No. 15 Ganesh Chandra Avenue, Calcutta, and from raising the existing height of the structure in the said premises.

The Plaintiffs'' case briefly is that they are the owners and are in possession of premises No. 17 Ganesh Chandra Avenue which was formerly known as P-38 Mission Row Extension, Calcutta. The Plaintiffs'' building is a five-storied building standing on or about 5-8 cottahs of land. The ground floor of the Plaintiffs'' premises and a portion of the first floor are in the occupation of the Plaintiffs themselves. The rest of the said premises is let out to companies and commercial firms of repute. It is a costly structure and according to the Plaintiffs'' pleading of expensive materials. The western wall of the Plaintiffs'' building stands upto a depth of 84 ft. from the road, Ganesh Chandra Avenue, and then that wall has a set-back on the east by about 4 ft. after extending 24 ft. to the north at right angles to Ganesh Chandra Avenue which runs from east to west. The Defendant''s premises No. 15 Ganesh Chandra Avenue adjoins the Plaintiffs'' premises No. 17 on the west. Until recently this premises No. 15 Ganesh Chandra Avenue of the Defendant consisted entirely of a vacant plot of land. It was only about June 1963 that the Defendant started the construction of a multi-storied building at premises No. 15 Ganesh Chandra Avenue. It is the Plaintiffs'' case that the Defendant dug up the land of No. 15 Ganesh Chandra Avenue to a depth extending far beyond the foundation of the Plaintiffs'' premises without taking due care and caution. The Plaintiffs allege that, by reason of this negligence on the part of the Defendant, the foundation and the structure of the Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue became insecure and was threatened with extensive damage and even ultimate collapse. On or about July 22,1963, when the Defendant''s work of excavation was going on in the Defendant''s premises, a portion of the Plaintiffs'' western wall measuring about 20 ft. in length in fact actually collapsed as a result of such work of excavation and construction and stacking up of heaps of earth on the land adjoining the Plaintiffs'' western wall. The Plaintiffs immediately made representations to the Defendant and thereupon the Defendant restored that wall.

The Plaintiffs'' case also is that even thereafter the Defendant continued and completed the construction of foundation of the Defendant''s building without due care and caution and without taking proper safe-guards for the protection of the foundation of the Plaintiffs'' premises by adequate shoring and other measures. The danger was foreseen by the Defendant. The Defendant at an early stage of the construction of its multi-storied building took out a public liability insurance policy from the Commercial Union Assurance Company for the sum of Rs. 5 lakhs but limited only to Rs. 1 lakh for any one person for indemnity which the Defendant might be legally liable to pay for compensation in respect of the damages to property happening or caused by or in connection with the construction of the Defendant''s multi-storied building. The Defendant constructed nine stories of the building and at the time of filing of the suit proposed to add some more stories to the existing nine stories. It is the Plaintiffs'' case that the Defendant in constructing such multi-storied building did not leave any gap between the said building and the Plaintiffs'' western wall and attached the eastern wall of the Defendant''s multi-storied building to the Plaintiffs'' western wall.

The Plaintiffs, therefore, plead that by reason of such attachment and also by reason of the Defendant''s constructing the foundation of its building without taking due care and caution the Defendant has threatened the Plaintiffs'' building with extensive damage and ultimate collapse. Indeed, the Plaintiffs'' pleading is that the symptoms which have appeared already in the Plaintiffs'' building at No. 17 Ganesh Chandra Avenue are serious enough. According to the Plaintiffs, their building has already suffered severe and extensive damage and that a large number of wide cracks have appeared both on the inner phase of the western wall of the Plaintiffs'' premises, particularly in the portion where the Plaintiffs'' wall has been attached to the multi-storied building. A number of cracks have also appeared in the south-western portion of the Plaintiffs'' wall facing Ganesh Chandra Avenue and also on a portion of the Plaintiffs'' northern wall. Cracks have also appealed on the walls in each floor of the Plaintiffs'' premises and the cracks are of different dimensions and of different shapes. These cracks are vertical, diagonal and also horizontal in nature. Indeed, on the outer face of the southwestern corner of the Plaintiffs'' wall cracks are so deep and wide as to be visible and running from the upper floors of the Plaintiffs'' said building towards the plinth. It is alleged that these cracks in the Plaintiffs'' building are not of a superficial nature and have actually the effect of splitting up the Plaintiffs'' wall through and through.

Disputes naturally followed immediately between the Plaintiffs and the Defendant. By a letter dated February 24, 1965, the Plaintiffs'' Solicitors called upon the Defendant to stop further construction at the Defendant''s premises so as not to endanger the safety and security of the Plaintiffs'' premises. The Defendant''s reply dated March 1, 1965, only said that the matter had been referred to their consulting engineers for opinion. But, since then the Defendant never answered the Plaintiffs'' letter even at the time when the suit was filed.

The seriousness of the situation increased. Towards the end of March 1965, the cracks extended much further from the outer walls of the Plaintiffs'' premises and extended to the inner walls and also the floors. These cracks were of a fundamental character and resulted in a change of level in different portions of the split-up walls, according to the allegations in the plaint. It is also alleged that these cracks have not only extended but also have widened so much that some of these cracks have assumed the character and proportion of fissures. Cracks are also alleged to have appeared on the walls of every floor and are extending everyday. It is pleaded that the cracks have almost become as wide as lines. and most of the 5 ins. thick partition walls of the building in all the floors on the southern half of the building have cracked. The plea of the Plaintiffs further is that the plinth near the south-western end of the building has cracked and even the door on the south-western side of the show-room cannot be closed.

The further danger is pleaded by the Plaintiffs by the statement that the glass bricks which had been used in the walls of the ground floor of the Plaintiffs'' building have cracked up and have fallen into pieces as a result of the level of the foundation of the Plaintiffs'' building becoming uneven due to the Defendant''s faulty and negligent construction of the foundation. According to the Plaintiffs'' pleading, the negligent and faulty construction of the Defendant''s foundation exercised a considerable lateral pressure on the Plaintiffs'' building. The six photographs attached to the plaint tell their own. tale at a glance.

The other aspect of this case is that even without answering the Plaintiffs'' letter of February 24, 1965, the Defendant expedited and hurried with the work of construction and, at the time of the suit, was proceeding with further construction with great haste. The Plaintiffs alleged in the plaint that on or about February 13, 1965, and again on April 5, 1965, they had their building inspected by Mr. K. C. Paul, a consulting engineer, who submitted two reports, and these two reports also have been annexed with the plaint. These reports support the Plaintiffs'' allegations in the plaint.

Broadly on these facts the Plaintiffs brought this suit for an injunction on the ground that unless further construction is stopped at premises No. 15 Ganesh Chandra Avenue, it will seriously aggravate the damage and endanger the Plaintiffs'' building. The Plaintiffs claimed leave under Order 2, Rule 2 of the CPC and had obtained leave thereunder when the Plaintiffs filed the suit on April 8, 1965.

The written statement of the Defendant company was filed by one Raichand Vaid as a principal officer of the Defendant company in charge of its estate department. The defence admits that the Plaintiffs'' present building is a five-storied building with a steel structure on the roof. The defence pleads that there was no digging of land extending far beyond the foundation of the Plaintiffs'' premises as alleged by the Plaintiffs and also pleads that adequate precaution was taken to prevent any possible damage to the Plaintiffs'' premises or to prevent sliding of soil therefrom. The charge of lack of due care and caution has been denied. The defence admits that while the Defendant''s work of excavation was in progress at its premises at 15 Ganesh Chandra Avenue, a portion of the boundary wall of the Plaintiffs was damaged and a portion thereof collapsed due to stacking of earth; The defence also admits that the entire boundary wall was restored by the Defendant at its own cost. The defence also admits that a policy of insurance was taken but states that it was taken at the request of the Plaintiffs.

The further plea of the Defendant is that the sanctioned plan of the Corporation of Calcutta for its building at No. 17 Ganesh Chandra Avenue permits attachment against Plaintiffs'' premises No. 17 Ganesh Chandra Avenue. In respect of the cracks the Defendant''s pleading in the written statement is, (i) that it admits that the cracks have appeared in several walls of the Plaintiffs'' building; (ii) but it states that no crack appeared on the western wall of the Plaintiffs'' premises which is immediately adjacent on the east of the Defendant''s premises and denied that any crack appeared on the western wall of the Plaintiffs'' premises as alleged or at all; and (iii) it admits that upon inspection it came to the notice of the Defendant''s engineers and representatives that several cracks of different sizes and shapes have appeared in some of the walls except the western wall.

The Defendant annexes in its written statement the two reports dated May 3 and 17, 1965, submitted by its engineers, Messrs. Chatterjee & Polk. These reports, however, were'' all subsequent to the filing of the suit. These reports purport to say and express the view that the cracks are not due to any faulty construction of the1 Defendant''s building on premises No. 15 Ganesh Chandra Avenue.

On these pleading the following issues were raised:

(i) (a) Was there any digging of land beyond the foundation of the Plaintiffs'' premises as alleged in para. 4 of the plaint ?

(b) Was there any want of care or caution or safe-guard as alleged in paras. 4, 5, 7, 10 and 16 of the plaint ?

(c) Did the foundation of the Plaintiffs'' premises become insecure for reasons alleged in para. 4 of the plaint ?

(d) Did a portion of the Plaintiffs'' western wall measuring about 20 ft. collapse as a result of the work of excavation, construction and stacking as alleged in para. 5 of the plaint ?

(ii) Is there any crack in the western wall in premises No. 17 Ganesh Chandra Avenue as alleged in para. 11 of the plaint ? (iii) Has there been any change of level as alleged in para. 15 of the plaint ?

(iv) Is there any invasion of the Plaintiffs'' right to or enjoyment of the Plaintiffs'' premises as alleged in para. 20 of the plaint ?

(v) Are the Plaintiffs guilty of laches as alleged in para. 21 of the written statement ? -(vi) Is the Plaintiffs'' claim barred by acquiescence or estoppel as alleged in para. 22 of the written statement ?

(vii) Has the Plaintiffs given particulars of negligence in suit and; if any, is the suit maintainable ?

(viii) What relief�s the Plaintiffs are entitled to ?

There is a large volume of oral evidence, mostly of engineers and contractors. There is also a large volume of documentary evidence consisting mainly of drawing, plans, photographs and correspondence.

On behalf of the Plaintiffs, the following witnesses were examined:

(i) Manindra Bhusan Biswas, who was the contractor in charge of the Plaintiffs'' building at No. 17 Ganesh Chandra Avenue;

(ii) Kiran Chandra Paul, an engineer who made the reports;

(iii) Purnananda Bose, a consulting engineer, who also had examined the building and made his report;

(iv) Kalika Nandan Sinha, engineer appointed by the order of the Court; and (v) Lakshmi Kanto Dey, the photographer.

On behalf of the Defendant, the following witnesses were examined:

(i) Girija Prosanna Lahiri, an engineer;

(ii) Bijoy Prosad Bhattacharyya, another engineer, both belonging to Chatterjee & Polk at some time or other;

(iii) Anil Kumar Mukherjes who worked as an engineer-in-charge of the Defendant''s Estate Department for some time ;

(iv) Hiran Kumar Sarkar, an engineer and valuer;

(v) Gobindalal Banerjee, a draftsman of Chatterjee %c Polk ;

(vi) Subhash Chandra Bhattacharjee, another draftsman in Chatterjee & Polk ;

(vii) Ashutosh Ghosh Dastidar, a labour contractor employed by the Defendant;

(viii) Gour Chandra Banerjee, a record supplier of the Corporation of Calcutta ;

(ix) Sambhudas Banerjee, an employee in the Commercial Union Assurance Company Ltd. and;

(x) Srivastava, the photographer.

The admitted documents have been marked Ex. 1. Other documents have been proved.

Before discussing the issues and the evidence in this suit, it will be necessary to refer to an interlocutory proceeding in this suit. When the Plaintiffs found that in spite of their letter the Defendant was hurriedly completing the construction of its multi storied building, the Plaintiffs filed this suit and immediately applied for an interim injunction. The Plaintiffs obtained an order of interim injunction from S.P. Mitra, J. on April 9, 1965, under which the engineer Mr. K. N. Sinha was directed to report about the causes of cracks and on the remedial steps. The interim injunction prohibited further construction by the Defendant. In that interlocutory proceedings, there was a further order by S.P. Mitra, J. directing the Defendant to allow the Plaintiffs to inspect the true copy of the sanctioned plans including the foundation plans of the Defendant''s building. Mr. K. N. Sinha inspected the premises in the presence of both sides and their engineers on April 23, 1965. Mr. P. Bose also made his report on April 25, 1965, which is marked as Ex. B-l in this suit. It was only, thereafter, on May 3 and 17, 1965, that Chatterjee & Polk made their two reports, marked as Exs. 14A and 14B. Before the second report of Chatterjee & Polk, the report of the Court engineer Mr. K. N. Sinha was made on May 7, 1965, which is marked as Ex. E. Thereafter, the application for injunction came up for final hearing before S.P. Mitra, J. who made the interim order absolute and confirmed the injunction of June 17, 1965.

The matter did not end there. The Defendant wanted to continue the construction in spite of the order of injunction by the Court. When the Defendant tried to do that, the Plaintiffs on August 9, 1965, moved an application for contempt before S.P. Mitra, J. for building the tenth storey at Defendant''s premises No. 15 Ganesh Chandra Avenue in violation of the Court''s order. On that application for contempt, the learned Judge made the order of September 22, 1965, holding the Defendant guilty of contempt. It was found that (i) Ratanlal Rampuria, the Managing Director of the Revenue Department, had apologised and (ii) Raichand Vaid, who has affirmed the written statement in this case for the Defendant company, was convicted and fined Rs. 2,000. This fine was paid by and on behalf of the Defendant by Raichand Vaid. It was only thereafter that further construction by the Defendant has been stopped.

Before taking up each issue separately in this suit, a broad general view of the evidence, both oral and documentary, will be helpful in giving a total picture of the position. I find that both on the oral and documentary evidence the following are the outstanding features of the case which are proved on record. In the first place, it is admitted even by the Defendant''s engineer Mr. Lahiri that the Defendant''s premises No. 15 Ganesh Chandra Avenue has settled. The series of answers which Mr. Lahiri has to Qs. 625 648 clearly established this that, so far as the Plaintiffs'' premises are concerned, No. 17 Ganesh Chandra Avenue, there has been a settlement. But, according to Mr. Lahiri, this was not an overall settlement but a differential or local settlement on the south-west corner of the Plaintiffs'' building. He has said and admitted in answer to Q. 632 that the road-side of premises No. 17 has settled. It is significant that Lahiri in his report never mentioned this crucial fact that premises No. 17 Ganesh Chandra Avenue had suffered a settlement on the south and western sides (Q. 646).

But what Lahiri does admit is that even the Defendant''s premises No. 15 has also suffered a settlement in answer to Qs. 647 648. He says that it was not an abnormal settlement. But, according to him, in answer to Q. 653 this settlement has not produced any crack in Defendant''s building at No. 15 Ganesh Chandra Avenue. In the second place it is proved, in my view, that Defendant''s premises No. 15 is heavier in build. Mr. P. Bose in answer to Qs. 106 and 110 emphasizes and explains how this heavier building has caused the drag. According to him, column 22 of premises No. 15 Ganesh Chandra Avenue has been cast against column No. Al of premises No. 17 Ganesh Chandra Avenue with6ut any gap whatever and as a result certain settlement is noticed vertically going down. The building at No. 15 is a ten-storied heavier building newly constructed. One phase of column 1 of Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue was used to cast concrete against column 22 of Defendant''s premises No. 15 Ganesh Chandra Avenue, and similarly Defendant''s column 21 was also cast without any gap whatever between the two structures. Mr. P. Bose''s explanation is that due to this casting there is a certain drag developed in between column 22 and Al and also certain load is thrown to Al, and Al is forced to go down as if it is dragged down. Therefore, Mr. P. Bose explains that due to this dragging Al is dragged down and the rest of the structure of Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue remains as it is. Hence, due to this differential dragging or settlement these cracks have mainly developed and, therefore, they are to be found at the junction of the two buildings and they diminish at the extremes where there are hardly any cracks. In fact, most of the major cracks appear on the southwestern portion of the Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue and from that point of view the elevation plan marked Ex. B3 of Mr. P. Bose has not been seriously or effectively challenged. In the next place, the series of photographs in this suit marked Exs. A1-A22 show the damages and the damages as shown by the cracks have not been challenged at all. Then again it is proved that the greatest damages are to the two columns 1 and 2 of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue as shown by photographs marked Exs. A16, A17 and Al. This again is identified by Mr. Biswas with the photographs in answer to the questions put to him. in Qs. 300, 304 and 346.

The evidence establishes also some other special features. The plinth level of Plaintiffs'' premises No. 17 has changed sloping towards the corner column in the south-western portion. In fact, that is the report of Mr. P. Bose, marked Ex. Bl in this suit, which I do not find seriously challenged. Now Plaintiffs'' premises No. 17 being out of plumb with a vertical inclination towards the west has been the subject of adverse comment by the Defendant that the Plaintiffs'' building suffers from faulty construction and faulty foundation and, therefore, it has become out of plumb. The witness who was brought to prove this on behalf of the Defendant was H. K. Sarkar. He only examined and inspected the Defendant''s premises No. 15 while the case was going on and the evidence was being given by other witnesses. In fact, according to him, he inspected this premises only on August 21,19G8. The point of his evidence was that premises No. 15 was in line with perfect plumb; but he visually looked into No. 17 from the window of No. 15 and found that the columns at No. 17 were not perfectly straight. But then his evidence on this case about plumbing was all so new that it was never put even to anyone of the Plaintiffs'' engineers while they were in the box. Besides, it was a very short and perfunctory plumbing that he did from only one point. He, however, incidentally admits the cracks which he saw at No. 17 although he was careful to notice the steel structures on the Plaintiffs'' building and the several cracks recently patched up. The value of Sarkars evidence on the point of plumb and trying to say that Defendant''s premises No. 15 was not out of plumb is negligible because he admits in answer to Qs. 430432 that he took the plumb only from one point on the south-eastern corner of the building and even that he was asked to do, apparently by Vaid who had called him and taken him there, and that this Mr. Sarkar did not take any measurement or write down any measurement.

The next feature established in the evidence is the appearance of cracks all on a sudden in the first week of February 1965 and that they were large wide fissures visible even from the roadside and which were progressing. The first complaint about these cracks was made by the Plaintiffs'' letter of February 24, 1965. It is significant that there was no denial at all. The only reply was by the Defendant saying that it was consulting its engineers. But the extra-ordinary feature is that, even without informing the Plaintiffs or answering their letter, the Defendant hurried on with the construction of the new storey and by April 1965, i.e., at the date of the suit the ninth storey was completed. The still more extra-ordinary feature established in the evidence is that even after the suit the Defendant went on with the construction leading ultimately to contempt proceedings, conviction and fine. This anxiety on the part of the Defendant to complete its building is a significant feature of this case.

The next important aspect of the evidence on record is that all the sanctioned plans of the Defendant''s buildings at No. 15 Ganesh Chandra Avenue were suppressed by the Defendant at all material times and even in spite of the orders of S.P. Mitra, J. on April 21, 1965, directing the Defendant to allow inspection, only two documents were produced which are marked as Exs. C and D in this suit. The strangest part is that the Defendant only chose to produce the plans through the Corporation record supplier almost right at the end of the trial when the Plaintiffs'' evidence had been completed and there is no explanation for all this delay by the Defendant. This delay or the reluctance to produce the sanctioned plans can apparently be explained by the extra-ordinary fact that there is no sanction (a) for timber-piling of the Defendant''s foundation at No. 15 Ganesh Chandra Avenue, (b) for the raft and (c) for the shifting of the two columns which the Defendant did. The evidence proves on record that there were changes in the Defendant''s design of the very structural foundation. The first sanctioned plan of the Corporation was for eleven-storied structure but with concrete bolt piles. But the curious feature of the Defendant''s case is that they kept the eleventh storey height alright of the building but changed the foundation design by weaker foundation of timber piling for which there is no Corporation or Municipal sanction. In fact, Mr. Bhattacharyya tried to say in his evidence that the Defendant''s architects and engineers wanted to reduce the number of stories from thirteen to ten because of this weaker foundation of timber pile. But the fact remains that the sanctioned plan even in the original was not for thirteen stories at all but only for eleven stories. Mr. Sen appearing for the Plaintiff has criticized this aspect of Mr. Bhattacharyya''s evidence as false. Then again the evidence establishes that the second design which contains the raft plan, Ex. O in this suit, very clearly left 1 ft. gap between the property line and the raft. What was then done was that two columns were shifted and they were right on the property line at a place where there were no piles at all as a foundation and which were flush against the wall and columns of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue. That is gross and clear negligence not only from the commonsense point of view but also from the engineering point of view. Mr. Lahiri, the engineering witness for the Defendant, admits in answer to Q. 467 that he could not say what was the width and length of the two columns, 21 and 22, because it was not written there. But he had said that the width would be 2 ins. but it was flush with the wall of premises No. 15 Ganesh Chandra Avenue. He tried to avoid the implication of that question by suggesting that it was the extreme eastern wall of No. 15 when the Learned Counsel in cross-examination in Q. 467 pressed him hard and he had to admit that the column was just shuttered against the column of premises No. 17 and flush against the wall. So again, Mr. Bhattacharyya, the other engineer witness for the Defendant, had also to admit the same in answer to Q. 91. It would be evident, therefore, from Lahiri''s answer to Q. 467 and Bhattacharyya''s answer to Q. 91 that column 22 is flush against column 1 and column 21 is, flush against the wall of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue.

I think the Defendant and his counsel realised the danger and the weakness of the defence on this point. What they, therefore, tried to suggest was to develop the theory of a cantilever to meet the above objection. It appears from the original raft plan, marked as Ex. O in this suit, that it did not show this cantilever at all. The working drawing showing the alleged cantilever could not be proved because the original was not produced by the Defendant. The sanctioned plan of the Corporation does not show the cantilever at all. These are serious facts which disprove the theory of cantilever which was a last minute attempt to meet this objection. In fact, Mr. Sen, Learned Counsel for the Plaintiffs, has submitted that there is really no evidence about cantilever. The Defendant''s own engineering witness Mr. Lahiri knows nothing about it. Even the other engineer-witnesses of the Defendant, Mr. Bhattacharyya, would not pledge his oath about the implementation of it. Actual construction of this alleged cantilever was supposed to have been done by a man called Sishu De, employed by the Defendant. But significantly enough he has not been called as witness at all. It is only Mr. Anil Mukherjee, the engineer employed by the Defendant to supervise the construction of the building at No. 15 Ganesh Chandra Avenue, who was used to fill up this serious gap in the evidence of the Defendant. But then he appeared to prove very little on the subject. In answer to Qs. 239-241 in cross-examination this engineer, Mr. Anil Mukherjee, had to admit that the actual concrete work for the construction of the beam was done by the labour contractor Sishu Babu who, as I have already told, was not called by the Defendant as a witness ; and that for the reinforcement work this Anil Mukherjee contacted one electric welding shop for welding works, but he could not remember even the name of that welding company. All that he says is that he brought certain electrical mistri from Dharamtalla who brought an electrical machine with which he did that job. But he does not know the name of the mistri and the bills of these Dharamtalla people which were paid by Raichand Vaid have not been proved. Naturally, Mr. Sen has severely commented on this discovery by the Defendant of cantilever device to overcome the Defendant''s engineering negligence in respect of this gap of 1 ft. According to Mr. Sen, it is really a construction of underground beam acting as a cantilever joint to existing beam by welding and the columns were placed right on the property line. I am inclined to accept Mr. Sen''s criticism on this point by reason of the fact that not only Ex. B-2, which is the plan of P. Bose and Ex. 14A support that view but also the answers to questions of (i) P. Bose: Qs. 43-63, 88 and 99, (ii) Lahiri''s answers to Qs. 435, 437, 450, 455, 462-463, 467 and 475, (iii) Bhattacharyya''s answers to Qs. 49-50, 75, 79 and 82 and (iv) Anil Mukherjee''s answers to Qs. 237-241. I need only add that Ex. D which was a drawing plan which was given to Mr. P. Bose under orders of Court for the first time indicated a kind of a cantilever.

The next part of the evidence which has to be emphasised is that the Plaintiffs'' building had been completed in 1955 at No. 17 Ganesh Chandra Avenue. For ten years the building had stood without any damage. It is, therefore, unnatural and unlikely that there should be all on a sudden such a violent settlement and sudden cracks with such wide fissures in the first week of February 1965. The only relevant event was the construction of the Defendant''s building. Naturally, the Plaintiffs with a good deal of force allege that it was that construction of the Defendant''s building which was the immediate and direct cause of these cracks. This was a difficult point for the Defendant to meet, but the Defendant did give an explanation and put up a theory to explain the cracks in the Plaintiff''s building. Defendant''s theory is that immediately after the two additional stories or rather open steel structures were put up on the Plaintiffs'' building at No. 17 Ganesh Chandra Avenue these cracks in the Plaintiffs'' building appeared and they are due to the weight of the steel structures on the stanchions and the stacking of materials on the roof of the Plaintiffs'' building. Mr. Banerjee, Learned Counsel for the Defendant, has also emphasised that between the stacking of the materials on the roof of the Plaintiffs'' building and the construction of the steel structures there was almost a gap of four months and that must have been the real cause of these tremendous cracks in the Plaintiffs'' own building.

The defence theory that the cracks at the Plaintiffs'' premises No. 17 Ganesh Chandra Avenue have been caused by the Plaintiffs themselves by construction of steel stanchions and by stacking of materials on the roof of their own building suffers from many defects and can hardly be accepted by any Court. In the first place, no owner or owner''s engineer would be so foolish and devoid of circumstance as to crack up his own building by such an act. It is unnatural and it is unlikely. The Corporation had sanctioned this extra construction of steel structures of two stories on the Plaintiffs'' building and the evidence is clear on the point that the foundation and the building were strong enough at No. 17 to support such additional weight. A little closer look at the evidence at this stage on this point may be of help. I shall first take up the evidence of the engineer Mr. K. N. Sinha who was appointed by the Court to inspect both the premises and to make a report. In answer to Q. 248, Mr. Sinha definitely says that he" did not notice any stacks during his inspection on the roof of the fifth storey of the Plaintiffs'' premises No. 17 Ganesh Chandra Avenue, and he also says that he does not even remember that Mr. Vaid ever told him about it. I am sure, if Mr. Vaid told him about it, Mr. Sinha would have remembered it. According to the Defendant''s engineer Anil Kumar Mukherjee he saw the stacking of the number of joists on the south-west corner of the roof of the Plaintiff''s premises at No. 17 Ganesh Chandra Avenue in October 1964 (Qs. 30 38). Although the stacks were there in October 1964 the cracks did not appear in October 1964, nor in November 1964, nor in December 1964, nor in January 1965, and they appeared all on a sudden only in the first week of February 1965.

A little closer examination of this story of stacking and steel stanchions on No. 17 Ganesh Chandra Avenue as producing the cracks will expose the futility of the defence. I shall take up first the evidence of Biswas, the Plaintiffs'' contractor. In answer to Order 695 in cross-examination Mr. Biswas said that full consideration was made of the extra two stories that the Plaintiffs had proposed to build and the actual load and relevant facts were asked for by the Corporation of Calcutta and they were shown and the plan sanctioning this extra two stories was allowed. It proves sanction of the Corporation. In fact, this sanctioned plan which is dated May 9,1964, for seven stories were produced by Mr. Biswas in answer to Q. 609. He had produced the original plans in answer to Q. 438. The net effect of this story is that the whole stacking defence was an afterthought because it was not mentioned in Lahiri''s first report which did not breathe a word about it. This case was made for the first time in the second report of Lahiri, marked Ex. 14b in the suit and it was dated May 17, 1965, but then the whole of this evidence of Lahiri on stacking is mere hearsay on the point. In answer to Q. 836 he admits that what he had stated in his report on that point was on the alleged facts reported to him by Mr. Vaid who was supposed to have told Mr. Lahiri that a steel stacking was there. For an engineer to include a fact in his report without examining that fact himself and to attribute the cause of the cracks to a fact which he had not himself examined is, to say the least an act of great irresponsibility on the part of an engineer. But the worst point is that this Vaid who was supposed to have reported to him about this did not have the courage to come to the box and say so to prove this defence of stacking and storing of steel stanchions of the roof of Plaintiffs'' building. The engineer who was appointed by the Court to inspect both the premises, Mr. K. N. Sinha, makes the position clear beyond all doubt in answer to Qs. 433 and 434 where he says that during his inspection he did not remember to have heard anything whatever about stacking of load as otherwise he would have mentioned that in his report. Mr. Sinha also says in his evidence that premises No. 17 had only five-storied building and there was a plan sanctioned for seven stories and so, in his opinion, there was a sufficient margin in the foundation to stack a certain amount of load without causing appreciable damage to the foundation. Mr. P. Bose, another consulting engineer called on behalf of the Plaintiffs, has also given evidence on this point. In answer to Q. 206 Mr. Bose says that there were 24 fabricated columns with so many beams and they could not be stacked within 4 or 5 ft. of the space of the junction and it had to be spread out, and as it spread out the intensity would be very much less. In answer to Q. 207 he says that these 48 beams could not be spread out on the south-west corner within a space of 4 or 5 ft. as it is physically impossible and it had to spread out within at least 20 ft. That means that it would have other columns also where there were no cracks. In fact, he said in answer to Q. 208 that when he inspected first there was no stack. In fact, on this point Mr. P. Bose''s report dated April 26, 1965, is quite clear. He says in his report which is an exhibit in this suit that the Plaintiffs'' building was completed in 1965 and as such settlement in foundation, if any, occurred prior to the construction of the Defendant''s building at No. 15 Ganesh Chandra Avenue which took place eight years after. Mr. Bose also expressed his view clearly in his report that the only addition to the building was the open steel frame erected for another storey at No. 17 Ganesh Chandra Avenue, which induces a loading of only one ton each being self-weight of joists, beams and columns to the corner column as well as to the next column with a combined footing. He expressed his view and conclusion in these terms:

Such a total extra load of two tons on a foundation area of 240 sq. ft. induces an extra pressure to soil below foundation of 0-0084 tons/sq. ft. and cannot be the cause of this movement. Moreover, this extra load is present in other columns of the building also and would have caused settlement to them as well contrary to fact. The evidence shows nothing to contradict these two reasons stated by Mr. P. Bose in his report and I have no hesitation in accepting that conclusion that the stacking of the said steel stanchions would not have cracked up the Plaintiffs'' own building in the first week of February 1965 in those circumstances and in the matter that the cracks have appeared. Finally, Mr. Biswas, the Plaintiffs'' contractor, in answer to Qs. 380 382 makes a case that these loose steel structures were brought by the Plaintiffs and sent to R. L. Bhattacharjee''s workshop in Manicktola from the market where they were fabricated and brought to the site in the back portion of premises No. 17 Ganesh Chandra Avenue and then hoisted up. The total time of erection was about 1\\ months. According to Biswas, the construction was finished in September 1964 (Q. 383). It began in July 1964 (Q. 390). He also makes it clear in answer to Qs. 391 394 that only steel stanchions and beams were erected. There were no doors or walls built. Again, in answer to Qs. 396 404 Mr. Biswas makes it clear that the cracks in the Plaintiffs'' building could not possibly have been caused by the steel structure. He has denied in answer to Q. 398 that various parts of the steel structure when brought from the Plaintiffs'' seller, they used to be brought up on the roof of No. 17 and kept stacked on the roof. The construction of the steel structures at No. 17 started in July 1964, but the construction of No. 15 Ganesh Chandra Avenue started in July 1963. It was in July 1963 that the excavation of the Defendant''s premises started for the plinth and foundation. According to Mr. Biswas, two or three months after the excavation, the Defendant began piling sal-balla in November 1963 and completed the sixth storey in February 1965 when the cracks at No. 17 appeared.

Lastly, the evidence establishes that the Calcutta soil is soft and silt clay and, therefore, care and caution are necessary in building sky-scrapers and high-risers or multi-storied buildings, specially in a congested city like Calcutta where buildings stand close to one another.

Having indicated the broad features of the evidence and the main problem, I shall now proceed to deal with the issues separately.

Issue 1(a):

Issue 1(a) raises the question whether the Defendant''s digging of Defendant''s land is beyond the foundation of the Plaintiffs'' premises as alleged in para. 4 of the plaint. Now, the facts are clear on this point. The foundation plan, marked Ex. 1 in the suit, shows that the foundation of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue goes up to a depth of 6 ft. 3 ins. This is also clearly the evidence of the consulting engineer Purnananda Bose, a witness for the Plaintiffs, in his answer to Q. 191. In fact, the two reports of Chatterjee & Polk, the engineers and architects for the Defendant, marked Exs. 14(a) and 14(b) respectively, dated May 3 and 17, 1965, and made by the engineer Mr. Lahiri, who gave evidence for the Defendant, and even annexed to the written statement filed by the Defendant, clearly admit that the foundation of the Defendant''s premises No. 15 Ganesh Chandra Avenue went down to a depth of 6 ft. 6 ins. This is admitted in para. 6 of the first report of Mr. Lahiri dated May 3, 1965, and also in para. 1 of his second report dated May 17, 1965.

The Defendant found that this admission was a serious defect of the Defendant''s story with regard to this issue on foundation. There was, therefore, an attempt made by Mr. Chatterjee when he came to the witness box as a witness for the Defendant to explain his report by saying that it was a typographical mistake and instead of 6 ft. 6 ins. it should be only 6 ft. That attempt was made by Mr. Lahiri when he came to the box and tried to correct his report by saying that 6 ft. 6 ins. was a typographical mistake for only 6 ft. Mr. Sen in cross-examination and in argument has criticized this attempt to change the case by Mr. Lahiri as a deliberate and false statement in order to avoid the implication and charge that the Defendant''s foundation went below the depth of the Plaintiffs'' foundation. I am inclined to accept Mr. Sen''s submission and hold that Mr. Lahiri''s attempt to change the figure from 6 ft. 6 ins. to only 6 ft. by suggesting typographical mistake in both his reports is insincere and his statement to that effect in evidence at the trial is untrue. I shall briefly state the reasons. In answer to Q. 394 he could not say when he found the mistake. I have the impression that Mr. Lahiri was avoiding to tell the truth to this Court in the series of his answers from Q. 394 to Q. 422. From this series of questions it will be clear that Lahiri was trying to say in the witness box that he discovered the mistake sometime in the end of 1965, long after the suit had been filed and, in fact, he tried to say that he informed the legal consultants and Mr. B. K. Chatterjee about the mistake. Nothing is shown by Lahiri as to why and when and under what circumstances he had the occasion to discover the mistake. Neither the legal consultant nor Mr. B. K. Chatterjee, the senior partner of Chatterjee & Polk, has been called to support this incredible version of Mr. Lahiri. Secondly, these two reports were annexed and used in the written statement filed in this suit by the Defendant and the written statement did not suggest that there was any typographical mistake in these reports. Thirdly, Lahiri used an affidavit in the interlocutory proceedings in this very suit and affirmed that affidavit on May 7, 1965, which is marked as Ex. 14 in this suit and even there in that affidavit he used and repeated the reports and the fact that the Defendant''s foundation went down to a depth of 6 ft. 6 ins. Fourthly, Mr. Vaid, the principal officer of the Defendant, who has verified the written statement in this suit for the Defendant also used an affidavit in the interlocutory proceedings and that also shown that the Defendant''s premises went down to a depth of 6 ft. 6 ins. in its foundation. Fifthly, the correspondence in this suit throughout shows that it was the Defendant''s case that its foundation went down to a depth of 6 ft. 6 ins. and not only to 6 ft., in spite of the fact that the Plaintiff had always been making the case that the Defendant''s foundation has gone beyond the foundation of the Plaintiffs'', e.g., in the Plaintiffs'' Solicitor''s letter dated July 25, 1963, included in the brief of documents marked Ex. 1 and which is the Defendant''s document No. 7. Lastly, this case that Lahiri made a mistake in stating the Defendant''s foundation to be 6 ft. 6 ins. when it should have been 6 ft. only was never put or even suggested to any of the engineers of the Plaintiffs who came to give evidence and who gave their evidence first before Lahiri went to the box. If, therefore, Lahiri had discovered the mistake at least before he went to the box and before the trial commenced, then one would expect that suggestion would have been made to the Plaintiffs'' engineers when they were in the box. It was not even put to the Plaintiffs'' engineers even though the Plaintiffs'' engineer witnesses were asked about the two reports of Chatterjee & Polk made by this witness, Mr. Lahiri. See, in this connection, evidence of Biswas in answer to Qs. 511-515 and the answers of P. Bose to Q. 193.

For these reasons, I am satisfied that the Defendant''s digging of the land at premises No. 15 Ganesh Chandra Avenue went beyond the foundation of the Plaintiffs'' premises as alleged in para. 4 of the plaint and I answer the issue affirmatively in favour of the Plaintiffs.

Issues 1(b) & (c):

This issue raises the question whether there was any want of care or caution or safeguard on the part of the Defendant and as alleged in paras. 4, 5, 7, 10 and 15 of the plaint. It also raises the question whether the foundation of the Plaintiffs'' premises has become insecure for reasons alleged in para. 4 of the plaint.

Now, the Plaintiffs allege that the foundation is without care and caution. If that be so, that is negligence. The case that the Plaintiffs have established on the evidence is that the Defendant did not observe the building rules of the Corporation and obtained no sanction for timber piling for this kind of a sky-scraper or a multi-storied building of eleven stories and that the Defendant should have used concrete bored piles and not ordinary concrete piles as they would have caused much less damage or vibration, but they should never have used ordinary timber sal-balla piling for such a tall building. In fact, evidence establishes that the Corporation of Calcutta had only sanctioned a foundation for such a building on the basis of concrete bored piles. There is no sanction produced before this Court to show that there was any sanction by the Corporation to permit such a building on the basis of only timber sal-balla piling. The Corporation sanction marked Ex. 22 in this suit uses the words "Lay out�40 tons capacity piled�standard cementation bored piles." It is, therefore, clear negligence and obvious lack of care and caution to change the Corporation sanction and privately alter the basis of the foundation from concrete bored piles to timber piles for such a multi-storied building. In fact, G.P. Lahiri, the Defendant''s engineer witness, had to admit in answer to Q. 851 that he could not explain why these concrete bored piles were not used in this case. In fact, Mr. P. Bose, the consulting engineer called as a witness by the Plaintiffs and who had also made a report in this suit, expressly made it clear in answer to Q. 346 that the concrete Bored piles do not create any vibration and these concrete bored piles for No. 15 Ganesh Chandra Avenue could easily have been designed without creating any vibration and any damage to Plaintiffs'' premises No. 17. In fact, that was the very thing for which the Corporation itself had sanctioned, but this was changed by the Defendant without the sanction and without the permission and knowledge of the Corporation of Calcutta.

An attempt was made on the part of the Defendant to suggest in evidence that in fact concrete piling would have been done but for the fact that the Plaintiffs themselves objected that the concrete piling would cause vibration and the heavy simplex concrete machinery which was in fact brought to the premises at No. 15 Ganesh Chandra Avenue had to be sent back because of the objection of the Plaintiffs. But this attempt cannot succeed on the ground that while concrete piles might have been objected to, the concrete bored piles for which the Defendants themselves are supporting would not have done so and was the stuff for which the Corporation had granted sanction for the foundation. Secondly, this attempt cannot also succeed because that would not justify the Defendant''s building on a foundation which on this evidence was too weak to support a multi-storied building of eleven stories.

The Plaintiffs also in my view have established on the evidence that there was no adequate shoring or shoring worth the name by the Defendant. Mr. G. P. Lahiri had a very difficult time on this point in cross-examination and he tried to suggest that barricade piling was a kind of shoring in answer to Qs. 800-806. He tried to get over this difficulty by suggesting that his expression ''planking or plating'' in his report was intended to convey this very idea which naturally was criticized by the cross-examining counsel as a false statement. ''Shoring'' is a well-known term in the engineering and when an engineer was making his report there was no point in his avoiding the word ''shoring'' and trying to express it by other means. The only other witness who tried to give evidence on this point was Ashutosh Ghosh Dastidar, a labour contractor. He has no engineering qualification. He is only a supervisor of labour. Although he said that he was supervising the work of pile driving and that he made a barricade and had the sal-ballas driven in answers to Q. 10 this labour contractor did not even remember the area of the land (Q. 21) and could not give any idea as to how many sheets he had fixed or name the persons who fixed the drums. Nor could he produce any field notes of any kind for he is supposed to have destroyed them and that will be clear from the series of his answers to Qs. 54 to 60. But the most serious thing for him was to have admitted in answer Q. 164 that he was given no separate drawing whatever for shoring and apparently he talked about oral instructions given to him.

As against this evidence given on behalf of the Defendant the evidence of the Plaintiffs'' witnesses on this point may now be examined. The evidence of the engineer appointed by the Court in this case, Mr. K. N. Sinha, says this in answer to Qs. 213-217. When the learned cross-examining counsel put to him the question in Q. 213 on vertical sal-balla on the side of the foundation amounted to shoring, the answer was clear that it was not shoring and shoring was entirely on different principles altogether. ''Shoring'' includes driving of the sal-balla piles, but the manner in which it has been described in the report which had been shown to him did not at all indicate any shoring. Vertically piling up a few sal-balla piles is not shoring. The evidence of the Plaintiffs'' contractor Mr. Biswas is in fact on this point. The relevant answers on this point are to Qs. 549 to 562. In answer to Q. 543 Mr. Biswas made it plain that the two columns that were coasted along with the building had no shoring and the columns started right from the ground over the beam and the raft and the beam under the column had no shoring although. In fact, he said that on the eastern side of No. 15 Ganesh Chandra Avenue, the Defendant''s premises, the Defendant excavated the earth absolutely without making any arrangement for shoring. Again in answer to Q. 557 Mr. Biswas makes the point clear in the evidence by saying that the plan of the Defendant which was sanctioned by the Corporation was for concrete bored piles and there was no sanctioned plan for sal-balla piles at all and, therefore, there was no question of putting these sal-balla piles and they were put afterwards without sanction. He also says in answer to that question that those sal-balla piles were placed according to the drawings that were shown to him and in those plans there was no shoring shown at all. He was quite clear in answer to Q. 558 that normally shoring plans should be made. There was none here. Like Mr. Sinha, Mr. Biswas also makes it clear in answer to Q. 550 that shoring is very different from vertical sal-balla piling. ''Shoring'', he explained by saying that first of all vertical sal-ballas are piled and then by their side either wood or steel shuttering are placed and then struts are given from the rest to the centre and that is what is called ''shoring'' to prevent slipping and sliding of the earth. The collapse of the boundary wall is a proof that either there was no shoring at all or no adequate, proper or careful shoring. In fact, this case was also made clear in that letter of July 25, 1963, from the Plaintiffs'' Solicitor to the Defendant which is Defendant''s document No. 7 in the brief of documents as well as the Defendant''s own letter dated October 16, 1963, which is Defendant''s document No. 8 in the said brief of documents marked Ex. 1 in this suit. A study of this correspondence shows that definite allegation was made that a trench had been dug at a width of 13 ft. and to a depth of 8 ft. to 10 ft. and the trench extended upto the foundation of the wall of the main building on the western side of the Plaintiffs'' premises No. 17 Ganesh Chandra Avenue. There was really no denial of this fact at any stage of the correspondence.

The next point of negligence or lack of care and caution on the part of the Defendant established on the record is the alteration of the first design and the making of the so-called second design where the eleven-storey structure was maintained, but the very foundation of concrete bored piles was altered and substituted by timber piling foundation and raft foundation which by itself is, prima facie, proof of negligence seen in the light of the facts mentioned above that there was no reduction of stories and yet a weaker foundation was substituted. The seriousness of it was realised and the engineer witness Mr. B. P. Bhattacharyya of the Defendant first mentions this in answer to Qs. 15 to 23. Facing this difficulty Mr. Bhattacharyya in answer to Qs. 297 to 308 tried to make out a case that original concrete foundation was to build a thirteen-storey house and as the concrete was substituted by timber foundation it was reduced to eleven. But that as I have already indicated is not a correct version for the stories were not reduced according to the sanctioned plan of the Corporation at all and in any event the Defendant cannot make themselves their own masters by changing the Corporation sanctioned foundation by one of its own without taking the permission of the Corporation.

But the most serious proof of the lack of due care and caution and of negligence itself is that the Defendant should have maintained this gap of 1 ft. between the foundations of the two buildings and the building on the gap which they ultimately did is not even according to the second design as is plain from the raft plan which is marked Ex. O in this suit. Some reference to the evidence on this point will make the danger clear. Defendant''s witness Lahiri spoke on the subject in answer to Qs. 444-447, 520 and 780-790.

Lahiri admits in answer to Q. 447 that there was no concrete or raft beyond the particular portion within the space of 1 ft. or 12 ins. between the raft line and the property line. He finally admits in answer to Qs. 718-719 that on the basis of the raft plan, marked Ex. O in this suit, it is clear that the Defendant''s foundation at premises No. 15 Ganesh Chandra Avenue was to be constructed on the basis of that plan leaving a gap of 1 ft. between the foundations of premises Nos. 15 and 17 and that was not done. This, in my opinion and view, is a very serious lack of care and very serious proof of gross negligence. This was also admitted by the other engineer witness Mr. B. P. Bhattacharyya of the Defendant in answer to Qs. 310-314 and 327. He admits that this space of 1 ft. between the property line and the raft line between the two buildings was not intended to be built up there so far as the foundation was concerned. His answer to Q. 327 make that abundantly clear without any doubt.

On Mr. Bhattacharyya''s cantilever theory, I have already discussed the relevant evidence on the point. As against this, Mr. P. Bose, the engineer witness for the Plaintiffs, in answer to the series of questions (Qs. 356-365) says that if the gap could have been maintained then there would have been practically no damage at all.

The next feature of the Defendant''s negligence and lack of care and caution established in the evidence is on the point of shifting of columns which I have already discussed. The shifting of columns was hasty, unauthorised, unnecessary and prima facie wrongful in the sense that it was a trespass to put column 22 flush against the Plaintiffs'' column and column 21 flush against the Plaintiffs'' foundation block and foundation wall, specially when there was no sanction at all by the Corporation of Calcutta. It was all the more negligent and indeed dangerous because this was done without reference to the pile lay-out position. This shifting of columns, in fact, involved further excavation. But there was no evidence of further shoring. The evidence of the engineer Mr. Bhattacharyya for the Defendant is mostly, not wholly, hearsay so far as implementation is concerned as will be seen from his answer to Qs. 28, 31 and 39, and I have already discussed Dastidar''s evidence on this point. Lahiri plainly described this as unnecessary in answer to Qs. 240 and 529. Bhattacharyya''s answer to Q. 104 also indicates that the Defendant was most hasty in this respect. The dangerous character of this aspect of the negligence of shifting the two columns in the manner they have been done without reference to the pile lay out position is indicated by the engineer Mr. P. Bose in answer to Q. 278 and in his report, Ex. B-l, by the engineer appointed by the Court Mr. Sinha in answer to Q- 391 and by Mr. Biswas in answer to Qs. 547-561. Mr. Biswas has also said that there was no evidence of further shoring in respect of this shifting of columns. (See, for instance, his answers to Qs. 541-543.) In fact, the consequence of such act would be catastrophic was admitted by Mr. Bhattacharyya, the engineer for the Defendant, in answer to Qs. 575 and 576.

On those facts I hold that there was want of care or caution of safeguard as alleged in paras. 4, 5, 7, 10 and 16 of the plaint and that the foundation of the Plaintiffs'' premises have become insecure for reasons alleged in para, 4 of the plaint. I answer issues 1(b) and (c), accordingly, in favour of the Plaintiffs.

Issue 1(d):

This issue raises the question whether a portion of the Plaintiffs'' western wall measuring about 20 ft. collapsed as a result of excavation construction and stacking, as alleged in para. 5 of the plaint.

Issue 1(d) is almost admitted. The wall, in fact, collapsed. It did so on July 22, 1963, at about 10 a.m. The Plaintiffs'' Solicitor''s letter dated July 25, 1963, included in the brief of documents, marked Ex. 1, states it and the letter dated October 16, 1963, the Defendant''s letter admits it. There is no denial that it did not collapse. The evidence of Mr. Biswas, the Plaintiffs'' contractor, in answer Qs. 96 and 533 as well as Dastidar''s answer to Q. 82 establish it.

I have, therefore, no hesitation in answering issue 1(d) in the affirmative and in favour of the Plaintiffs.

Issue 2:

This issue raises the question whether there is any crack in the western wall in Plaintiffs'' premises No. 17 Ganesh Chandra Avenue as alleged in para. 11 of the plaint. The Plaintiffs'' case� is that there were cracks on the inner phase of the western wall of premises No. 17 Ganesh Chandra Avenue and they were thin cracks. I shall briefly refer to the evidence given on behalf of the Plaintiffs on this point.

Plaintiffs'' contractor Biswas has given evidence on this point and some of the more important answers appears in Qs. 149, 191 and 621-639. He has identified the cracks with photographs marked Ex. A3 and Ex. A5. His evidence is that in photograph marked Ex. A3 there is a big crack on the junction where the tell-tale is shown and it is this junction which he emphasized. He also points out in photograph marked Ex. A5 a long crack by the right-hand side of the tell-tale in the northern portion of it concerning the attached part of the western wall. It was put to him that according to the engineer witness Mr. P. Bose there was no crack on the western wall but he said that he could not say whether P. Bose was correct or not. In fact, when P. Bose''s Q. 162 and the answer were placed before him, Mr. Biswas said that he could not make any remark on that point, but Mr. Biswas himself found the cracks there. The next evidence on the point is of the Court engineer Mr. K. N. Sinha, who in answer to Q. 36 said that the cracks on the western phase were prominent only on edges but not in the photograph and in answer to Q. 24 Mr. Sinha said that the cracks on the western wall in the ground floor were very thin on the wall itself, but the columns showed prominent cracks on the surface. The next witness for the Plaintiffs who spoke about the cracks is the engineer Mr. Kiran Chandra Paul, who in answer to Qs. 99-103 says that he saw cracks on the western wall of the Plaintiffs'' premises No. 17 which was attached to the Defendant''s premises No. 15 from the inner phase of the building meaning thereby the south-western portion. In Q. 103 he was put definitely the other engineer''s view that there were no cracks on the western wall and his answer was that he could not believe that statement to be correct because Mr. Paul had himself seen the cracks with his own eyes. The Defendant was building up this case that there were no cracks on the western wall on the answer given by Mr. P. Bose, one engineer witness for the Plaintiffs, to Q. 194 where he said that if anyone had stated that there were cracks on the western wall of premises No. 17, such statement would be wrong. But this statement of Mr. P. Bose I do not think justifies the theory which the Defendant has put forward. In his first report dated April 26, 1965, Mr. P. Bose noticed some of the cracks that have appeared and mentions them in that report. He says that the front facade of the building at No. 17 Ganesh Chandra Avenue has extensive decorative marble facing. Cracks are noticed in the facade with their number and magnitude being maximum next to the line of common attachment breaking the marble facing to ground floor extensively and wall surface in upper floor with reduced intensity away from common attachment and upwards towards upper floor.

He also mentions in that report that a print of the front elevation shows the cracks. He goes on to say in that report that besides these cracks shown on the facade, the mosaic floor to ground floor as well as walls show cracks and sign of disturbances in places. I am informed that the glass bricks to show windows that are seen broken have been so recently. In upper floor similar cracks are noticed in the brick wall to front from inside extended mainly upto the second bay, the magnitude of cracks decreasing away from the west corner with common attachment. At the other extremity of attached length with column marked Bl in the annexed plan, next column has been placed at a distance of about 4''-0". Cracks are noticed in wall between these two columns. Besides these, wide cracks are noticed in 5" partition walls. A crack is noticed in the roof at the fifth floor. No cracks are noticed in attached wall between columns Al and Bl.

Reading this report as a whole, it will appear that he was definitely making a distinction between portions of the western wall.

In some places there were cracks. The reasonable conclusion that I can arrive at is that there were cracks on inner face of the western wall of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue, but they were thin cracks and might not have been noticed by Mr. P. Base, but his lack of notice cannot prevail against the more direct evidence of Mr. Biswas, Mr. Sinha and Mr. Paul whose questions and answers I have already stated above. I, therefore, hold that there were thin cracks on the inner face of the western wall of premises No. 17 and there were other cracks in other parts. I answer the issue accordingly.

Issue 3:

This issue raises the question whether there has been any change of level as alleged in para. 15 of the plaint.

The relevant document on this point is Mr. P. Bose''s report dated April 26, 1965, marked Ex. Bl in this suit. The portion of the report dealing with this question of the change of level has already been quoted above. The gist of that report is that from the print of the front elevation showing the cracks marked in red and annexed with the report and otherwise it is proved that there is disturbance in plinth below shop windows and the marble top to the plinth at the second column from the corner column marked Al has separated out with a drop of about\\ in. from the rest and sloped down towards corner column with a maximum of 1\\ins. level difference. The second report of Mr. P. Bose dated May 28, 1965, shows that there is no overall settlement of the structure at the Plaintiffs'' premises No. 17 Ganesh Chandra Avenue as a whole. The evidence as well as that report emphasize that due to dragging effect of the settlement of the Defendant''s structure at No. 15 Ganesh Chandra Avenue there is a settlement of the Defendant''s western attached portion only causing differential settlement in the building at No. 17 Ganesh Chandra Avenue with consequent cracks. They also express and point out to the conclusion that at the southwest corner of premises No. 17 Ganesh Chandra Avenue this settlement was measured to be \\\\ ins. and the fact that these cracks appeared ten years after completion of the Plaintiffs'' structure at No. 17 Ganesh Chandra Avenue and that they appeared after the completion of -six stories of the Defendant''s structure at No. 15 Ganesh Chandra Avenue and progressing in magnitude and number as further stories were being built, was not a coincidence but was connected as cause and effect. This is clearly explained by Mr. P. Bose in his evidence in answer to Q. 106. He also gives direct evidence in answer to Q. 109 saying that at the south-west corner where column 22 adjoins column Al of the Plaintiffs'' structure at No. 17 Ganesh Chandra Avenue, that plinth level at Al has gone down by \\\\ ins. I do not find that there was any effective cross-examination on this answer given by Mr. P. Bose to Q. 109. The next evidence is the photograph, marked Ex. A1G in this suit, showing the level changing of a column. In addition to this evidence there is also >5 the evidence of Mr. Biswas, the Plaintiffs'' contractor. Mr. Biswas, giving evidence on the photograph Ex. A16, says that the photograph shows the Plaintiffs'' premises No. 17 Ganesh Chandra Avenue and its southern wall showing the cracks on the columns and it has shifted towards the west because the levels of both the portions had changed. He demonstrated this change of level and how the cracks have; appeared. According to him, that portion went down and that portion was attached. So( the level changed and it could be seen from the photograph particularly when examined at the corner. Again, in answer to Qs. 367-368 Mr. Biswas says that the floors of Plaintiffs'' premises No. 17 Ganesh Chandra Avenue had sunk with the result that the floors also have cracked and he also says that the level of the building has changed and in the extreme western corner of No. 17 Ganesh Chandra Avenue it would be near about as much as If ins. to 2 ins. On this point he gives further evidence in answer to Qs. 370-375. The gist of his evidence is that the plinth had sunk with the result that the glass bricks and marble stones have cracked. One portion of the door has sunk so horribly that it could not be closed and it had to be opened by cutting it and replacing it. His evidence is that the whole door slumped and the bottom portion of it had to be cut and re-fixed.

One part of the defence put forward was that Plaintiffs'' premises No. 17 Ganesh Chandra Avenue was out of plumb and, therefore, indicated inherent constructional defects which might have produced the cracks. That defence has no substance. If Plaintiffs'' premises No. 17 was out of plumb from the beginning then the cracks would have been produced long ago and not after ten years and immediately after the Defendant had put up its six stories of structure. Secondly, Plaintiffs'' whole case is that it was this dragging by the Defendant''s structure which might have caused the Plaintiffs'' building to-be out of plumb. In fact, the question was put to Mr. Biswas while he was on the box and in answer to Q. 721, when he was asked that if premises No. 15 inclined towards the west then premises No. 17 would not be out of plumb towards the west if there was no gap, the answer was that it could be because of the movement of the soil underneath and because of the dragging it had lost the plumb. He explained that earlier also in answer to Q. 719. In fact, there is a series of questions put to the engineer appointed by the Court, Mr. K. N. Sinha, from Qs. 451-456 on this point but even he, who said in Q. 454 that it was no part of his investigation to find out how the Plaintiffs'' premises got out of plumb, says in answer to Q. 456 that the Defendant''s premises�

No. 15 is affected so far as settlement is concerned if during the settlement there is an out of plumb and I cannot help it. Similarly, Mr. P. Bose in answer to Q. 352 said that it was not surprising that the Plaintiffs premises was out of plumb. The other engineer, Mr. K. C. Paul, spoke of this buckling tendency of Defendant''s premises No. 15 Ganesh Chandra Avenue and in answer to Q. 112 makes it clear:

the fact is that the buckling tendency, if it is through and through for the length of 22 ft. attachment, then it is something else. But if it is in some particular places, where the column is thrust against the column of the other building, then that place excepting the other places may come out of plumb. As against this mass of evidence, the casual and perfunctory evidence of Sarkar about premises No. 15 being in plumb cannot avail. It is all the more so because if there is a uniform settlement at Defendant''s premises No. 15, then the structure at No. 15 will keep the plumb.

On these facts I hold that there has been a change of level as alleged in para. 15 of the plaint and I answer issue 3 affirmatively.

Before taking up the next issue 4, I should like to briefly dispose of issues 5, 6 and 7.

Issues ?, 6 and 7:

Issue 5 raises the question of Plaintiffs'' laches which is pleaded in para. 21 of the written statement, but no evidence has been given of Plaintiffs'' laches at all or even of delay. In fact, the Plaintiffs have been vigilant and protesting at all relevant times. It was the Defendant who seemed to be always in an unseemly hurry to build the construction.

The sixth issue raises the question, whether the Plaintiffs'' claim is barred by acquiescence or estoppel as pleaded in para. 22 of the written statement. The pleading is that the Plaintiffs acquiesced in the construction and allowed the Defendant to continue the construction at No. 15 Ganesh Chandra Avenue, as a result of which the Defendant has changed its position and has incurred considerable expenses for the purpose of the construction of the building. Therefore, the Defendant pleads that the Plaintiffs are estopped from challenging the Defendant''s right to complete the construction at No. 15 Ganesh Chandra Avenue in accordance with the plans sanctioned by the Corporation of Calcutta. The difficulty of the Defendant is that this whole change of the foundation from concrete bored piles and changing of columns were without the sanction of the Corporation of Calcutta. That has already been discussed earlier in the judgment.

The letter dated December 12, 1963, written by Mr. Biswas to the Defendant which is disclosed as Defendant''s document No. 22 in the brief of documents marked Ex. 1 in this suit makes certain points very clear. In order to appreciate those points it will be necessary to refer to the letter to which Mr. Biswas''s letter was an answer. That letter was a letter of the Defendant dated December 10, 1963, which is the Defendant''s document No. 21 in the brief of documents marked Ex. 1 in this suit, which admitted in these terms the damages caused until that point of time:

We confirm that upto this day the under-mentioned damages have been caused to your premises No. P. 38 Mission Row Extension due to the construction work going in at our premises No. 15 Ganesh Chandra Avenue. We hereby agree to make good the loss you have sustained up-to-date by re-constructing the under-noted damages. Subsequent damages, if caused, will be covered by the insurance policy No. 4585301. Particulars of damage�

(1) 5" C/B compound wall (2) Floor of the 4''-0" wide open passage (3) Open drain (4) Sewer line.

Now, this letter is significant for it is an admission that the Defendant has caused damage to the Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue by the Defendant''s construction at No. 15 Ganesh Chandra Avenue. The damages, therefore, are admitted, not only damages upto that time which the Defendant promised to make good but also promised to insure the Plaintiffs against future damages. Very little remains of the Defendant''s present denial, therefore, that they had not been negligent, nor are they liable for damages to the Plaintiffs.

Now, coming to the reply of Mr. Biswas dated December 12, 1963, the point which Mr. Biswas emphasizes in that reply are�

(i) the under-mentioned damages were confirmed as having been caused by the Defendant, (ii) clearer definition of the particulars of damage caused upto December 10, 1963, by it missing more clearly the four specific damages and (iii) that insurance, if any, should cover also risks of vibration and subsidence which was clearly expressed.

It was on that basis and on those conditions that the Defendant''s construction could go on.

The insurance policy tells a strange tale in this connection. The insurance was taken up with Commercial Union Assurance Company Ltd. Ratanlal Rampuria, a director of the Defendant company, was himself a director of this insurance company. That will be found from Ex. Q in this suit which contains the particulars of directors filed under the Companies Act before the Registrar of Companies. There are insurance policies, one relating to the workmen''s compensation with which this suit is not concerned and that was dated October 22, 1963, marked Ex. 8 in this suit. The relevant insurance policy is Ex. 7 which makes a strange reading. To begin with, it only agrees to indemnify the Defendant insured against liability arising from accidents in respect of ''accidental damage to property.'' Secondly, this insurance does not expressly cover any damage done to Plaintiffs'' premises No. 17 Ganesh Chandra Avenue and only covers damages to the Defendant''s property at No. 15 Ganesh Chandra Avenue. Thirdly, by express typed exclusion this insurance excludes liability in respect of underpinning in building or other structure by an express clause in the policy being Clause 5(f) of the exception clauses in the policy. Naturally there was a good deal of controversy and exchange of correspondence over such a kind of insurance which meant no practical benefit to the Plaintiffs. It may also be emphasised here that in Ex. 7 the insurance policy in the clause defining the description of accidents apart from saying accidental damage to property expressly used these words "happening at the site and occurring during and in connection with the R.C.C. construction for the building at 15 Ganesh Chandra Avenue, Calcutta." Naturally such expressions ''at the site'' and the damage to the property at No. 15 Ganesh Chandra Avenue would mean no relief to the Plaintiffs and their premises at No. 17 Ganesh Chandra Avenue. It will not be necessary to discuss in detail all the letters relating to the change in the policy conditions and only a bare reference need be made to the insurance company''s letter dated November 11,1963, marked Ex. 9, which is Defendant''s document No. 14, the Defendant''s letter to the insurance company dated November 22, 1963, marked Ex. 10 and the insurance company''s letter dated November 22, 1963, marked Ex. 12 ending with the correspondence of the Defendant company with Mr. Biswas dated November 29, 1963, which is Defendant''s document No. 19, and all of which documents are included in the brief of documents marked Ex. 1 in this suit.

On the top of all these defects in insurance policy criticism has also been made that the policy has not in fact been renewed. The period of the policy was from October 23, 1963 to October 22, 1964. It has been said that this policy in fact was not renewed in 1964. Mr. Sambhudas Banerjee came from the Commercial Union Assurance Company Ltd. to give evidence in this case as a witness for the Defendant. He frankly admitted in answer to Q. 154 that this insurance does not cover any risk for any damage happening at the plain-tiffs'' premises (Qs. 154-155). He also had to admit in answer to Q. 159 that there was no endorsement on Ex. 7 to show that this Clause 4 was not applicable and the policy was in fact extended to cover risks of vibration and subsidence occurring to the Plaintiffs'' premises. In Q. 161 he admitted again that there was no other condition in the policy to protect the Plaintiffs. He could not prove the renewal slip or any endorsement of such renewal on the original policy. The series of questions from Qs. 52 to 82 show that there was in fact no renewal.

Insurance, in those circumstances, could not be regarded either in fact or in law as an acquiescence or an agreement by the Plaintiffs. In the first place, the insurance contract is not between the Plaintiffs and the insurance company or a tripartite policy between the Plaintiffs, the Defendant and the insurance company. In the second place, it is only a cover for damages for accidents and not for negligence and lack of due care and caution on the part of the Defendant. In the third place, in any event, it cannot mean that the Plaintiffs can neither recover their damages under the insurance even though such damages are caused by the Defendant, nor ask the Defendant to stop causing further damage to the Plaintiffs'' premises at No. 17 Ganesh Chandra Avenue.

I, therefore, answer issue 6 in the negative and I hold that there has been no acquiescence or estoppel barring the Plaintiffs'' claim.

The seventh issue raises the question whether the Plaintiffs had given particulars of negligence and, if not, was the suit maintainable. I find that all the particulars that the Plaintiffs knew were given in the plaint and even they annexed to the plaint the reports of Mr. K. C. Paul, a qualified engineer, dated February 15, 1965 and April 6, 1965. These reports of the technical engineer give all the particulars that the Plaintiffs could know. The particulars broadly stated in the plaint are (i) that there was no adequate shoring, (ii) that the digging was beyond the depth of the Plaintiffs'' foundation, (iii) the attachment, (iv) cracks and (v) foundation not with due care and caution.

In such circumstances I cannot hold that the Plaintiffs did not give particulars. Whether the particulars were sufficient or not was an entirely different matter. But even then the fact remains that the Defendant never asked or made any application for further and better particulars.

I, therefore, hold on the facts of this case that sufficient particulars were given in the plaint and specially in the annexures to the plaint containing the two reports of Mr. K. C. Paul, the engineer, and I hold that the suit is maintainable and cannot fail on the ground of lack of particulars. I answer the 7th issue accordingly.

Issues 4 and 8:

What remains now are the two issues 4 and 8. The fourth issue raises the question whether there is any evasion of the Plaintiffs'' right to or enjoyment of the Plaintiffs'' premises as alleged in para. 20 of the plaint. The eighth issue raises the question to what relief�s the Plaintiffs are entitled.

Mr. M. N. Banerjee, Learned Counsel for the Defendant, submits that the law recognizes only a natural right of support for the land but does not recognise it or extend it to support a building. He submits that there is, in law, no right to support a building except by prescription. He submits in this case the Plaintiffs'' building at No. 17 Ganesh Chandra Avenue is less than twenty years old. This raises a very significant question of law, specially in connection with sky-scrapers and multi-storied buildings in Calcutta.

I shall briefly review the legal position as I read it.

The right to have one''s land supported by one''s neighbor�s land is known in law as a ''natural'' right. This was laid down by Lord Campbell, C.J. as early as in Humphries v. Brogden (1850) 12 Q.B. 739 (744). It was regarded that a nuisance would be committed if such a support was removed either laterally or from beneath where the ownership of the top soil, as in mining areas, is different from the ownership of the subsoil. The actual subsidence of the Plaintiffs'' land is the essence of this claim and not just the withdrawal without any effect. In Darley Main Colliery Company v. Mitchell 11 AC 127, it is laid down that where a series of subsidence�s separated by interval of time are caused by series of excavations, each new subsidence is a ground for a fresh cause of action and this nuisance, so regarded in the law of torts, arises when the support ceases to do its work and not when the excavation is made.

What is, however, important is to emphasize that although there is no ''natural'' right to the support of buildings, there can be an acquired right for such a support and also sometimes consequential damages may be obtained in an action for the withdrawal of support to land if its effect is to cause damage to buildings as well. But this will only be the legal result if the subsidence would have occurred in any event had there been no buildings creating additional weight. That is how I read the two decisions in Brown v. Robins 4 H. and N. 186and Stroyan v. Knowles 6 H. and N. 454. In other words, disturbances of the natural right to the support for land may sometimes give rise to a claim for consequential damages in respect of injury to buildings. In Stroyan v. Knowles, the Defendant''s mining operations caused the Plaintiffs'' land to subside and this subsidence damaged the Plaintiffs'' factory. The Court held that although the support for the factory, not having continued for the requisite period, had not been acquired by prescription, yet since its weight did not contribute to the causing of the subsidence the Plaintiff was entitled to consequential damages for the loss. In Partridge v. Scott 3 M. and W. 220 Baron Alderson expressed the celebrated opinion that, a man has no right to load his own soil so as to make it require the support of its neighbour.

That is why this right of support for the building, unlike the support for land, is not considered as a ''natural'' right in law or as a kind of right inherent in the ownership of land with buildings upon it. But then this right to the support of a building may be acquired by grant or even by prescription. Where it has been acquired either by grant or by prescription, a nuisance will be committed if the support is withdrawn. The leading case on the point is Dalton v. Angus 6 A.C. 740. There the Plaintiff and the Defendant owned adjoining properties each with a house, though not touching the other, was supported laterally by the neighboring land. The Plaintiff converted his house into a factory. As a result, the building became heavier than it was before and required a stronger support than previously. In that case more than twenty years later, that is, after the expiry of the relevant period of prescription, the Defendant demolished the house and made excavations upon the site. The result was that the Plaintiffs'' factory subsided. The Court on those facts held that the lapse of twenty years had given the Plaintiff a right by prescription not merely the right to the support of. the original house but also to the support of the building as converted into a factory. The Plaintiff, therefore, succeeded in his claim. In this connection, the decision of Cory v. Davies (1923) 2 Ch.D. 95 may also be seen.

Lord Selborne, L.C. in Dalton v. Angus 6 A.C. 740 treated the right to lateral support from adjoining land acquired after twenty years prescription for a building as an easement. Lord Selborne observed:

Support to that which is artificially imposed upon land cannot exist ex jure naturce, because the thing supported does not itself so exist; it must in each particular case be acquired by grant,

or by some means equivalent in law to grant, in order to make it a burden upon the neighbor�s land, which (naturally) would be free from it.

The learned Lord Chancellor drew support for this distinction from the observation of Willes, J. in Bonomi v. Backhouse 1 E.B. and E. 655 where the learned Judge had said:

The right to support of land and the right to support of buildings stand upon different footings, as to the mode of acquiring them, the former being prima facie a right of property analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as matter of grant; whilst the latter must be founded upon prescription or grant, express or implied; but the character of the rights, when acquired, is in each case the same.

Again Lord Selborne expressed the view:

I think it clear that any such right of support to a building, or part of a building, is an easement.�Page 793

Collins, L.J. in Southwark and Vauxhall Water Company v. Wandsworth District Board of Works (1898) 2 Ch.D. 603 (612-613) formulates the legal position in this way:

I think it is clear in such case that, though the pulling-down owner must be careful to interfere as little as possible with the adjoining house, he is certainly not called upon to take active steps for its protection, as, for instance, by shoring it up. There is a broad distinction between exercising a right with reasonable care so as not to do avoidable damage, and taking active measures to insure the continuance of something that is not a right in the adjoining owner. Ghadwick v. Trower, (1836) 3 Bin. N.C. 334 : 6 Bing. N.C. 1 merely decides that, supposing there is a duty upon a person pulling down his own house to take care not to injure his neighbor�s vault in so doing, where he knows of its existence, though it has acquired no right to support, there can be no such duty where he does not know of it. And it cannot be the law that the pulling-down owner is bound to find a substitute or equivalent for the support which he has a right to remove. That he has such right is clear; see Dalton v. Angus 6 A.C. 740, I think the result is that though the person pulling down is bound to do no unnecessary damage, he is not fixed with any obligation to take active steps to mitigate a mischief which follows inevitably upon the reasonable exercise of his own rights. I think, therefore, the only obligation on the Defendants was to use reasonable care to do no unnecessary damage to the Plaintiffs.

These observations emphasize certain points which in this branch of the law have become increasingly important since Collins, L.J. made these observations. The points the learned Lord Justice emphasized are:

(i) Care to interfere as little as possible with adjoining house ;

(ii) exercise the right with reasonable care so as not to do avoidable damage;

(iii) a passive and not an active duty to insure the continuance of something that is not a right in the adjoining owner;

(iv) that this passive duty implies that no unnecessary damage to the adjoining owner should be done although there is no active obligation ; and

(v) obligation to use reasonable care to do no unnecessary damage to the Plaintiffs.

I think the time has come when Courts should recognise the sociological needs and obligations of the ownership and use of property vis-a-vis the adjoining neighbour and the Law of Torts requires to be adjusted to the present sociological needs of the society where congestion in cities is growing fast and where modern engineering and technological advances are putting up high-risers and sky-scrapers in close and intimate proximity with neighboring lands. I should like on this branch to invoke the ''neighbour'' doctrine in this branch of the law, which was enunciated by Lord Atkin in Donoghue v. Stevenson (1932) A.C. 562 (580) Lord Atkin made the following observations:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public sentiment of moral wrong-doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour ; and the lawyer''s question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts-or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour ? The answer seems to be�persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This is the growing doctrine of neighbour in the law of negligence in torts. It is assuming an extremely important role in congested cities which are all over-built and where buildings stand in closest proximity and contiguity. There is a sociological obligation, which the law will recognise or should recognise in the light of the above observations of Lord Atkin that the concept and character of a neighbor�s duty, are changing in the present context of metropolitan building chaos. Lord Atkin raises the question, who is my neighbour, in the Law of Torts. Surely, one who is building a high-riser or a multi-storied building or a sky-scraper in one of the busiest business centers in a city like Calcutta, adjoining his house and attaching it with his next-door owner, does answer the test of neighbour. Therefore, it follows that he must take reasonable care to avoid acts or omission which can reasonably be foreseen and which are likely to injure the neighbour. It is neither straining the law nor straining the ethics to say that in such a case the persons are so ''closely and directly affected by my act'' that law would require that I should exercise due care and caution. A duty to exercise care arises in this new sociological context. Anyone without much overstraining of logic or language can foresee that an unusually high building like a multi-storied building with eleven stories or a skyscraper is bound to affect the owner of the adjoining building. I do not think in doing so and in taking this view I am inventing new legal rights in the Law of Torts. I am only acknowledging the well-recognised rights in the Law of Torts in their modern complEx. I do not consider that I am venturing to make some new principles in this respect for I recall Lord Macmillan in Donoghue v. Stevenson (Supra) made the observation that the categories of negligence are never closed.

The principle of negligence is always there. But naturally what is or is not negligence must change with physical and environmental change in a growing and developing society. Lord Macmillan made that observation just exactly where he was discussing the changing society and he observed:

The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What, then, are the circumstances which give rise to this duty to take care ? In the daily contacts of social and business life human beings are thrown into, or place themselves in an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human truancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust itself to the changing circumstances of life.�Pages 618-19 The sky-scraper or the multi-storied building is such a changing circumstance. One who raises it has to submit to a legal obligation which can bring him within the law of negligence whose categories are not closed and, wherever necessary, will include such phenomenon.

The avenue of the development of the law in the modern age is the broadening concept of negligence. Strict liability in tort has now fallen into some disfavor. It is unlikely that any new tort will be formulated although no doubt the re-orientation of the complex tort of intimidation by the House of Lords in Rooken v. Barnard (1964) A.C. 1129 has caused a good deal of commotion. But, nevertheless negligence holds the possibilities for expansion. In the 14th edition of Salmond on Torts it has been stated.

When relationships come before the Courts which have not previously been subject of judicial decisions the Court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the Courts.

Lord Radcliffe in Lister v. Romford Ice Company (1957) A.C. 555 (591-2 observed:

None really doubts that the common law is a body of law which develops in the process of time in response to the development of the society in which it rules. Its movement may not be perceptible at any distinct point of time, nor can we always say how it gets from one point to another, but I do not think that for all that we need abandon the conviction of Galileo that somehow or by some means, there is a movement that takes place.

Although no doubt the neighbour principle is now accepted as part of the Law of Torts, how far does it extend will be a matter for the future to see. In the present context of facts, with which I am dealing, I have no hesitation in holding that whatever view one takes of a ''neighbour'' this one comes within that purview. The potentialities of the neighbour principle are already being tested in diverse directions. In Hedley Byrne if Company Ltd. v. Heller and Partners Ltd. (1964) A.C. 465 the House of Lords used the neighbour principle to justify the inclusion of careless statements within the sphere of negligence, an achievement which may be described as a significant break-through or advance or expansion of the Law or Torts in modern times. On the other hand, the Privy Council in Commissioners of Railways v. QuinIan (1964) A.C. 1054 described the neighbour principle as ''somewhat overworked shorthand'' and did not extend that neighbour principle to modify the 19th century principle that an occupier of property owed no duty to a trespasser other than not to inflict intentional or reckless injury.

At this stage the discussion has to branch off from negligence to the doctrine of Rylands v. Fletcher (1868) L.R. 3 R.L. 330. Rylands v. Fletcher has become a concept by itself and has almost developed into a suburban doctrine on the fringe of the formal area of the law of negligence. Its importance lies in the fact that Rylands v. Fletcher''s liability is imposed without any need for proof for negligence or lack of care on the part of the Defendant.

These two torts, viz., of negligence and the Rylands v. Fletcher liability, have common features and ever since this rule was propounded by Blackburn, J. indicates the influence of its origin from the action on the case for nuisance which was before the learned Judge. Very often the provinces of these two torts overlap. But, nevertheless, there are distinctions between them. While the Rylands v. Fletcher liabilities do not require either negligence or lack of care, yet lack of care must have to be established in the case of the nuisance. It has been said that nuisance is a wider concept than Rylands v. Fletcher liability which embraces many forms of annoyance quite unconnected with the escape from land. The one recent House of Lords decision discussed the growing nature of this branch of the law. That decision is Read v. J. Lyons if Company Ltd. (1947) A.C. 156 (167) where Viscount Simonds observed:

now the strict liability recognised by this House in Rylands v. Fletcher is conditioned by two elements which I may call the condition of escape from the land of something likely to do mischief if it escapes and the condition of non-natural use of the land. Now these two conditions are (a) escape and (b) non-natural use of land. The question often is the escape, the escape of what object ? Obviously the lists of things are not closed and can be expanded to come within the doctrine of Rylands v. Fletcher (1868) L.R. 3 R.L. 330. In Rylands v. Fletcher itself the object that escaped was water. Since then judicial decisions have added many other objects to the list like gas North-Western Utilities Ltd. v. London Guarantee and Accident Company (1936) A.C. 108; electricity Eastern and South African Telegraph Company v. Cape Town Tramways Company (1902) A.C. 381; vibrations Hoare and Company McAlpine and such other objects as fire, explosive and noxious substance. In fact, they have now come to be called in law as ''Rylands v. Fletcher objects''.

The case of Hoare and Company v. McAlpine (1923) 1 Ch. 167 shows that where in preparing a site for a large building in the heart of the city the Defendants drove a large number of piles into the soil thereby setting up such a heavy vibration as to cause serious structural damage to an old house belonging to the Plaintiffs with the result that the greater part had to be taken down in compliance with the dangerous structure notice, the Plaintiffs were entitled to damages. The ratio of this decision is that the principle of Rylands v. Fletcher (Supra ) as explained in Naional Telephone Company v. Baker (1893) 2 Ch.D. 186 and Attorney-General v. Cory Brothers (1921) 1 A.C. 521 applied to such a case. Incidentally it was pointed out in that case that even if the Plaintiffs'' house was in an abnormally unstable condition the Defendants were responsible as insurers for all damages caused by the escape of the vibration they had so created.

Astbury, J., delivering the judgment in Hoare if Company v. McAlpine repelled the argument which was made before me at the Bar in the instant case. Astbury, J. observed as follows:

The following proposition is sought to be established from these passages: A man cannot limit the operations of his neighbour of his land or increase his neighbor�s liability by putting his property for his own purposes into a structural condition in which it is more than ordinarily liable to be affected by that neighbor�s legitimate operations. In some circumstances this may be accurate ; as applied to the present case it is, in my judgment, inappropriate, and the analogy of contributory negligence does not apply.

Applying this test, if the ''vibration'' is a Rylands v. Fletcher ''object'' then the load of the Defendant''s building at No. 15 Ganesh Chandra Avenue which dragged the Plaintiffs'' building at No. 17 Ganesh Chandra Avenue, both through the attachment as well as by the foundation of No. 15 going deeper than the foundation of No. 17, and also by the weakening of the foundation which was sanctioned only for concrete bored piles wrongfully and negligently substituted by sal-balla piles by the Defendant, is a kind of force which conies within the concept and category of ''Rylands v. Fletcher objects''. In such circumstances, even the fact that the Plaintiffs� structure was in unstable condition as a contributory negligence cannot help the defence in the present case. I have, however, held that there was no contributory or other negligence on the part of the Plaintiffs at all on the facts of this case and I have only referred to this aspect of the case not only because it was a consideration which weighed with Astbury, J., in coming to the conclusion in Hore and Company v. McAlpine (Supra), but also because the suggestion was here made that the Plaintiffs'' building was not built on sound engineering principle and even if it were a fact, it would not have helped the defence.

Having explained the Rylands v. Fletcher objects and its escape in the context of the present facts before me I shall now proceed to refer to the other limits of the rule in Rylands v. Fletcher, namely, that it must flow from ''non-natural'' use of the land. This was clearly pointed out by Viscount Simonds in Read v. J. Lyons if Company Ltd. (Supra ). Building a multi-storied building on deep foundation and driving piles underground is, I consider, a non-natural use of land within the test of that limit.

Apart from negligence and rule in Rylands v. Fletcher, within the facts and law of which I hold that the Defendant has come, there are other grounds on which the Defendant''s liability is established. Those two grounds are (i) trespass and (ii) subsidence of the Plaintiffs'' land. Mr. Sen, Learned Counsel for the Plaintiffs, in developing the point of trespass points out the signal fact that the Defendant built flush against the foundation structure of the Plaintiffs even apart from the attached boundary wall. To build in this manner flush against the Plaintiffs'' structure is trespass. It is no argument in this regard that the Plaintiffs'' structure cracked because it was unstable or not built on sound engineering principle. I have already quoted the authority on this particular point in Hoare & Company v. McAlpine (Supra) and I need only add the famous observation of Lord Denman, C.J. in Dodd v. Holme1 Ad. and E. 493 : 110 E.R. 1296 (1300) observing�

A man has no right to accelerate the fall of his neighbor�s house.

This principle was also approved in Bradbee v. Christ''s Hospital 4 M. & G. 714 (759) by Tindal, C.J. On the second point of subsidence it is established on the evidence, which I have already discussed, that the Plaintiff''s land has subsided and, therefore, the consequential damage to the building standing upon it which has cracked brings it within the doctrine of consequential damages as propounded in the authority of Stroyan v. Knowles (Supra), already quoted above.

There is one more authority to which I shall refer. That is the decision of the House of Lords in George Martin Hughes v. John Percival. The facts of that case were as follows: The Appellant and Respondent there were owners of adjoining houses between which was a party-wall, the property of both. The Appellant''s house also adjoined B''s house and between them was a party-wall. The Appellant employed a builder to pull down his house and rebuild it on a plan which involved the tying together of the new house and also the party-wall between it and the Respondent''s house, so that if one fell the other would be damaged. In the course of the rebuilding, the builder''s workmen in fixing a staircase, negligently and without the knowledge of the Appellant, cut into the party-wall between the Appellant''s house and B''s house, in consequence of which the Appellant''s house fell, and the fall dragged over the party-wall between it and the Respondent''s house and injured the Respondent''s house. The cutting into the party-wall was not authorised by the contract between the Appellant and his builder. The House of Lords came to the conclusion that the law cast a duty upon the Appellant to see that reasonable care and skill were exercised in those operations which involved a use of the party-wall belonging to himself and the Respondent, exposing it to the risk and that the Appellant could not get rid of such responsibility by delegating the performance to a third person and was liable to the Respondent for the injury to his house. The party-wall in that case may very well be almost near the attached boundary-wall in the present case before me and the result will be more so here because the boundary-wall was not the wall of the Defendant but of the Plaintiff. In the House of Lords decision in Hughes v. Percival 8 A.C. 443, the House approved of the observation of Chief Justice Cockburn in Bower v. Peate 1 Q.B.D. 321 (326) where the proposition laid down was:

The answer to the Defendant''s contention may, however, as it appears to us, be placed on a broader ground, namely, that a man who orders a work to be executed from which in the natural course of things injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief and cannot relieve himself of his responsibility by employing someone else� whether it be the contractor employed to do the work from which the danger arises or some independent person�to do what is necessary to prevent the act he has ordered to be done from becoming wrongful.

Lord FitzGerald sums up the whole law briefly in these terms:

What is the law applicable ? What was the Defendant''s duty ? The law has been verging somewhat in the direction of treating parties engaged in such an operation as the Defendant''s as insurer of their neighbors, or warranting them against injury. It has not, however, reached quite to that point. It does declare that under such a state of circumstances it was the duty of the Defendant to have used every reasonable precaution that care and skill might suggest in the execution of his works so as to protect his neighbors from injury and that he cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible for injury, no matter how occasioned, but he must be vigilant and careful, for he is liable for injuries to his neighbour caused by any want of prudence or precaution, even though it may be culpa levisairria.�Page 455 If I may say so respectfully, the law is most clearly and pointedly laid down by Lord FitzGerald in those observations and the Defendant, in my opinion, on the facts of the case before me has not exercised either that vigilance or that care or that prudence or that precaution which was essential both on the law as I understand it and have tried to explain above, and on the facts as I appreciate them. The House of Lords in Southwark''s case (Supra ) also indicates the adjoining owner''s rights.

I, therefore, hold on issues 4 and 8 that there has been invasion of the Plaintiffs'' right to or enjoyment of the Plaintiffs'' premises as alleged in para. 20 of the plaint and they are entitled to the relief�s claimed. I answer both these issues 4 and 8 accordingly.

The question then is what is the relief to which the Plaintiffs are entitled. In the plaint the only relief that the Plaintiffs are seeking is a perpetual injunction restraining the Defendant, its agents, servants and assigns from carrying on or continuing ''further'' works of construction in premises No. 15 Ganesh Chandra Avenue and ''in raising the existing height'' of the structure. On the facts found and on the law discussed above, I hold that the Plaintiffs are entitled to this injunction in terms of prayer (b) of the plaint. The other relief was leave under Order 2, Rule 2 of the Code of Civil Procedure, but that I find the Plaintiffs have already obtained at the time of filing the suit.

Mr. Sen, Learned Counsel for the Plaintiffs, has submitted before me that the Defendant is not entitled to retain that portion of the structure which it built in violation of the Court''s order for injunction and for which the Defendant was found guilty for contempt and fined. In para. 25 of the petition for contempt affirmed by the Plaintiff Sunil Kumar Poddar on August 9, 1965, the Defendant has been charged with having made the following constructions'' at No. 15 Ganesh Chandra Avenue in violation of the order of injunction:

(i) The eastern wall of the staircase in the ninth floor had been fully constructed upon the roof beam level;

(ii) the walls enclosing the staircase landing on the east and north in the 9th floor have been constructed upto a height of about 4 ft.

(iii) the eastern wall running from the northern end of the lift room upto the extreme northern end of the building in the 9th floor has been fully constructed and five steel window-frames with glass fitted thereto have been fixed and plastering of the newly constructed wall of this portion has been completed from both outside and inside ; and

(iv) the entire northern wall running from the east to the west of the building in the 9th floor has been fully constructed and several windows have been fitted and fixed therein and the plastering thereof have been completed from inside and outside.

Mr. Sen, therefore, submits that this Court should order mandatory injunction for removal of the structures which the Defendant had built in violation of the Court''s order for injunction by committing contempt of the Court and which has already been so found by the Court. He relied on the decision of Maganlal Punjasa v. Chhotalal Ghela ILR 26 Bom. 13 for this purpose! That, however, was not a case for contempt of Court by violation of an order for injunction but where the Defendant built when the application for interim injunction had been vacated and there the learned Judge held that, even where no mandatory injunction was claimed to pull down a structure, it could do so by talking into consideration the events that had happened subsequent to the filing of the suit. Although the portion of the structure was built by the Defendant in contempt of the order for injunction, I would not in my discretion grant an order for pulling down the portion of the structures which the Defendant has built in contempt, of the Court''s order and for which he has already been fined and which fine has been paid. I do not think I need to pass any particular order in that respect.

For these reasons, there will be judgment for the Plaintiffs with costs. Certified for two counsel. Let the Court engineer''s claim for costs be added.