RATNAVELU MUDALIAR Vs. KOLANDAVELU PILLAI

JUDGEMENT

(1.) The defendant is the appellant. It is found by the lower courts that the appellant's father having purchased the site in 1880, pulled down in 1883 the old dwelling houses and built a substantial terraced house which rose in height a good deal over the adjoining house of the plaintiff, his neighbour, on the east. He constructed a cornice partly for decoration and partly as a protection against the weather of the lower part of the wall. It is nearly a foot beyond the wall and overhangs the ground between, belonging to the plaintiff and also the roof of his house. The ground it overhangs has been found to be in the possession of the plaintiff from 1883, and as the cornice has not been in existence for 20 years, no easement has been acquired by the defendant : the lower Courts have accordingly declared that the plaintiff is entitled to remove the defendant's cornice when a new wall which the plaintiff's building reaches it, in so far as it stands in his way of raising the wall.

(2.) It is contended before us on behalf of the appellant that though he may not have acquired any right under the Basements Act, yet as the cornice has been in existence for more than 12 years, the plaintiff is not entitled to interfere with it. The case in Mohanlal Jechand V/s. Amratlal Bechardos I.L.R. 3 B. 174 clearly supports the appellants. It was found in that case that the roof of the defendant's house overhanging the space which belonged to the plaintiff between that house and the plaintiff's to the extent of about 3 feet in width had been in that position for more than 20 years. The learned judges considered that it was an occupation of space rather than an enjoyment of an easement, and treating it as a case similar to the case of possession of an lap per chamber of the house white the ownership and possession of the ground floor remains in another, held that the plaintiff could not after 12 years recover possession of the space occupied by the defendant's projecting roof.

(3.) The case in Mutta Kumari Dassi V/s. Puddomani Bewah I.L.R. 30 C. p. 503 p. 504 is not in point. There the learned judges held that no right of easement can be acquired by prescription to a cornice which has been erected merely for the purpose of ornamentation. The claim before us is not one of easement, as the projection has not been in existence for 20 years. Further, in that case the defendant built his wall "so as to absorb or include" the plaintiff's cornice, which he might be well entitled to do, even if the plaintiff, had acquired a right by prescription to retain his cornice see Corbet V/s. Hill L.R. 9 Eq. 671 as the space above and below the cornice might still continue to belong to the defendant. The defendant did not attempt apparently to interfere with the plaintiff's cornice.