VARREY TULASAMMA Vs. NANDULA BUCHIRAMAIAH

JUDGEMENT

(1.) The defendant is the appellant. The plaintiff and the defendant are adjacent owners of house property. The plaintiff is the owner of a one-third portion of a site on the west shown in the plaint plan and the defendant is the owner of the site and the house on the east which occupies two-third portion of the site marked in the plaint plan. The plaintiff purchased the site in 1938 and the defendant purchased it in 1936. In the year 1928 when the plot was under a common owner, a house was constructed in plot B of the plaint plan with the eaves projecting into site A to an extent of 2 feet 6 inches along the length of the wall for about 10 yards 2 feet; and from the eaves rain water was dropping into the site A. This state of affairs continued until disputes arose and the present suit was instituted by the plaintiff against the defendant for a mandatory injunction directing the defendant to remove at her expense the eaves on the western side of the house in plot B belonging to her and also for a permanent injunction restraining the defendant from allowing the rain water on the western side of the defendant's house from falling into the plaintiff's site.

(2.) The defendant claimed in the suit that she had acquired title to the eaves by prescription and that the plaintiff is not entitled to the injunction prayed for.

(3.) On the principle of the decision of this Court in Rathinavelu Mudaliar V/s. Kolandavelu Pillai the trial Court held that the defendant had acquired title to the projection of the eaves by prescription as it was in existence for more than 12 years and that her right was not founded on an easement. Regarding the right to drop eaves water, the learned District Munsiff held that as the defendant was exercising the right of letting the water into the site B without let or hindrance by the plaintiff and his predecessors-in-title for a period of 16 years, it was not a case in which the Court should exercise its equitable jurisdiction by granting a permanent injunction restraining the defendant from letting the water into the site of the plaintiff. The result was that the plaintiff's suit was dismissed by the learned District Munsiff.