CHHAGANLAL FULCHAND Vs. HEMCHAND TAPIDAS

JUDGEMENT

(1.) The finding of the lower appellate Court is that the defendants protruded their eaves on the plaintiffs roof in the year 1909. The suit was instituted in 1927 about eighteen years after the protrusion of the eaves. The lower appellate Court directed that the defendants should not allow their eaves to protrude over the plaintiffs roof.

(2.) On behalf of the appellants it is contended that where a person erects a building overhanging the land of another he commits a trespass and acquires by prescription a right to the space of air occupied by such projection, and reliance is placed on the case of Bahadarmal V/s. Mohanlal (1924) 27 Bom. L.R. 536, where it was held that if 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 judgment of the single Judge is inconsistent with the decisions of the Division Bench of this Court in Chotalal Hirachand V/s. Manilal Gagalbhai, s.c. 15 Bom. L.R. 551 and in Kashibhai v. Vallavhbai .

(3.) In Ghotalal Hirachand V/s. Manilal Gagalbhai it was held that the possession of a pankh or eaves for the discharge of water overhanging the land of another is an easement and not an occupation of property. Previous cases were referred to and the Court came to the conclusion that the possession of eaves was not an occupation of another person's property. This decision was followed in the case of Mulia Bhana V/s. Sundar Dana, s.c. 15 Bom. L.R. 876.