SAMINADA SASTRIGAL Vs. PATHMA BIBI AMMAL

JUDGEMENT

(1.) There were three matters involved in the suit. The first of them relates to the construction resting on the plaintiff's kosali. Kosali means eaves or projection from the top of a wall. The kosali is part of the plaintiff's house. The plaintiff's and the defendant's houses belonged originally to one owner. He conveyed the houses and the grounds attached to them to different vendees. We must hold that the kosali attached to the eastern house passed to the plaintiff, the purchaser. The decision in Laybourn V/s. Gridley (1892) 2 Ch. 53 proceeded upon the special facts of that case. It is no authority for the position that the kosali of the adjoining house which overhangs the ground of the house first sold passes to the purchaser of that house. The kosali then being the plaintiff s, is she entitled to the space above and beneath it? We think not. See Corbett V/s. Hill (1870) L.R. 9 Eq. 671. Can the defendant, however, raise a construction resting on the plaintiff's kosali ? No authority has been cited to us to show that this is not a trespass.

(2.) The next point raised in appeal, which is also made the subject of a ground in the memorandum of objections, is the Judge's direction that in execution the defendant's privy is to be removed if it is adjacent to the plaintiff's wall. This is wrong. We must ask the District Judge to return a finding on the evidence on record on issue No. 3. The last six words of it are not quite intelligible. The Judge will re-frame the issue in accordance with the contentions of the parties.

(3.) The memorandum of objections raises a question as to the plaintiff's right to go into the defendant's house for repairing her wall. There is no force in this contention.