ABDUL KARIM Vs. ALIYARU KUNJU

JUDGEMENT

(1.) These two second appeals arise out of two suits between the same two parties, the plaintiff in one suit being the defendant in the other. The appellant in S. A. 376 of 1958 which arises out of O.S. 695 of 1951, is the plaintiff and the respondent is the defendant. They are owners of adjoining lands, on each of which there is a building. The respondents building is found by the two courts to be more than twelve years old, with its eaves on one side projecting over the appellants land on the east all the time. As the projection constituted an obstruction to certain structural alterations to the appellants building which he was contemplating, he sued for a mandatory injunction to compel the respondent to remove the same, basing his right on an alleged agreement by the respondent so to remove, and also on his title and possession in respect of the portion of the land, which is perpendicularly below the projection. The agreement being found against, the appellant was nonsuited in the court of first instance and his appeal to the Subordinate Judge was dismissed on the ground, that the respondent had acquired by adverse possession a right to maintain the roof in its existing condition. The connected second appeal (S.A. 424 of 1958) arises out of a suit by the respondent to declare his title to the strip of land directly below the projecting part of the roof or in the alternative, his right of easement to maintain the roof as it is and for other reliefs; the declaration was refused by the two courts. S.A. 424 of 1958 was pressed only for a direction to issue concerning the location of the beams which the appellant might erect in making the proposed alterations to his building.

(2.) The main question is in S.A. 376 of 1958, and is whether, the appellant can compel the respondent to remove the projecting part of the roof of the latters building. The respondent supported the decree dismissing the appellants suit only on the ground, that the projection per se constituted trespass and having been made at the time his building was completed and continued for more than twelve years, he has perfected his title to so much of the space occupied by it by adverse possession and in any event, the appellant has lost his right to remove such trespass. It is too true, that the plea of adverse possession or of limitation was not set up in these terms by the respondent. But he did assert a claim of having acquired a right to project the roof of his building, partly on the strength of his alleged title to the strip of land below it and partly as an easement by prescription. In my view, a distinction exists and must be maintained between As right to discharge on Bs land the rain water from the eaves of As house, which in terms of illustration (b) to S.23 of the Indian Easements Act, 1882, is an easement, and As occupation of a part of the space above Bs land by the mere projection of roof, which in essence is in the nature of and constitutes trespass. In the generality of cases, the discharge of rain water from the roof over neighbouring land, is associated with and follows as a consequence of the projection in the proof; but it is possible to conceive of cases of projection, the water being drained away without falling on anothers land. As observed by Joshi in Easements and Licences, 3rd Edition, page 374:

(3.) The rule was stated thus, in Corbett v. Hill (L.R. 9 Eq. 671):