MULIA BHANA Vs. SUNDAR DANA

JUDGEMENT

(1.) There are two questions on which the parties are at issue in this appeal. The first is whether the defendant who at a previous time had his eaves projecting ten inches over the plaintiff s land (and so far as we can judge he had uninterrupted enjoyment of them for twenty-five years) should be interfered with when he raises the wall of his house and projects the eaves to the same extent at a correspondingly increased height. The learned District Judge has held that except in the case of the discharge of water from the eaves the nature of the interference with the right of the servient tenement is trespass and not within the law relating to easements. We are unable to agree with his opinion upon that point. It appears to us that the definition of easement in the Easements Act applies just as much to a projection of eaves in a dry country where there is no discharge of rain water as in a country where there is an abundant rainfall and there is discharge of water. It is to be observed, moreover, that in Ahmedabad there is often an abundant rainfall, and the eaves must be used in the ordinary course for the discharge of rain-water. The case falls within the decision of this Court in Chhotalal v. Manilal (1913) 15 Bom. L.R. 551

(2.) If the defendant has acquired an easement from a projection I of eaves ten inches over the plaintiff s land, he can raise the height of those eaves so long as he does not throw an increased burden upon the servient tenement. That is provided by Section 23 of the Easements Act: see also Harvey v. Walters (1875) L.R. 8 C.P. 162.

(3.) We understand the learned District Judge s finding, that the defendant has projected his eaves beyond their former limit, to be based upon his proposition of law that the defendant cannot project his eaves at all at a different height to that at which they were originally projected. The decree, therefore, must be modified in respect of the eaves.