DAHYABHAI VANMALIDAS SHAH Vs. HIRALAL UMEDRAM SHAH

JUDGEMENT

(1.) THE principal question in this case is whether by the possession of a pankh (a projection) overhanging the property of defendant No.1, the plaintiff has obtained title to the column of air below it so that he may resist the defendant's claim to build on his own land, or whether the pankh which has existed for a good many years is a mere easement.

(2.) THE facts which have been stated in the judgments of the lower Courts are that there is a joint wall between the plaintiff's and the defendant's properties. On the upper portion of that wall the plaintiff had erected a pankh, or weatherboard, to protect it, many years ago. THE learned trial Judge has held that the pankh had been in existence for more than twenty years, and that it was intended for the protection of the side walls of the house, but that the protection will be equally or even more effectively afforded by the defendant's new building, and there will be no irreparable damage to the plaintiff's house if the eaves are removed. In appeal the learned District Judge has taken a different view. Relying on a decision in Bahadarmal v. Mohanlal (1924) 27 Bom. L. R. 536, he has held that the projection (which is quite distinct from eaves to discharge rain water) is not a right of easement, but a substantive right. THE case he cited is a judgment of Mr. Justice Taraporewalla. THE head-note runs Where a person opens the shutters of his windows and projects weather frames over them for more than twelve years on the land of another he acquires a right to maintain them by adverse possession , the theory being that the trespasser obtains by adverse possession a right to the column of air below his projection. I have been referred to a number of cases on this point, and it seems to me that they show that if a projection be an integral part of the building to which it is attached so that its removal will injure the building, a title is obtained by adverse possession of twelve years to the column of air below it; in other words, the owner of the land over which it projects has no right to remove it. If, on the other hand, the projection is not an integral part of the building, but is intended for the preservation or safety of the building, then the person who has made it can obtain an easement only.

(3.) MR. Desai who has very clearly stated the case for the respondent would distinguish between eaves, whose function is to carry off rain water, and a pankh whose function is to protect the wall. But I do not see any clear difference. Both are adjuncts to a wall or to a house for the protection of that house or for the comfort of the occupants. In both cases the position of the eaves or pankh can be altered without endangering the house and both are quite distinct from beams or roofs which have been dealt with in the cases I have mentioned.