1. The principal question in this case is whether by the possession of a pankh (a projection) overhanging the property of defendant No. 1, the plaintiff has obtained title to the column of air below it so that he may resist the defendant's claim to build on his own land, or whether the pankh which has existed for a good many years is a mere easement.
2. The facts which have been stated in the judgments of the lower Courts are that there is a joint wall between the plaintiff's and the defendant's properties. On the upper portion of that wall the plaintiff had erected a pankh, or weatherboard, to protect it, many years ago. The learned trial Judge has held that the pankh had been in existence for more than twenty years, and that it was intended for the protection of the side walls of the house, but that the protection will be equally or even more effectively afforded by the defendant's new building, and there will be no irreparable damage to the plaintiff's house if the eaves are removed. In appeal the learned District Judge has taken a different view. Relying on a decision in Bahadarmal v. Mohanlal (1924) 27 Bom. L.R. 536, he has held that the projection (which is quite distinct from eaves to discharge rain water) is not a right of easement, but a substantive right. The case he cited is a judgment of Mr. Justice Taraporewalla. The head-note runs-
Where 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 theory being that the trespasser obtains by adverse possession a right to the column of air below his projection. I have been referred to a number of cases on this point, and it seems to me that they show that if a projection be an integral part of the building to which it is attached so that its removal will injure the building, a title is obtained by adverse possession of twelve years to the column of air below it; in other words, the owner of the land over which it projects has no right to remove it. If, on the other hand, the projection is not an integral part of the building, but is intended for the preservation or safety of the building, then the person who has made it can obtain an easement only.
3. The first case cited is the case of Mohanlal Jechand v. Amratlal Bechardas I.L.R. (1878) 3 Bom. 174, which has been relied on by Mr. Justice Taraporewalla. It does not decide the question whether the projection created a title or merely an easement inasmuch as it was not necessary to decide it, for the projection has been in existence for more than twenty years. In Ranchod Shamji v. Abdulabhai Mithabhai I.L.R. (1904) 28 Bom. 428 : 6 Bom. L.R. 356, the question was whether the plaintiff's beams which were overhanging the defendant's soil gave the plaintiff a right to the column of air above them. There Jenkins C. J. held that the beams gave the plaintiff a right to the space occupied by them, but not the air above or below them and the defendant was entitled to build above them. That was the case of a beam which was an integral part of the building. Bahadarmal v. Mohanlal is the case I have already mentioned, and it was held, after the consideration of all the rulings, that the plaintiff having opened his shutters and maintained his weather frames projecting for more than twelve years over the defendant's soil, he had acquired a right thereto by adverse possession. That was a decision by a single Judge, and in Chhaganlal v. Hemchand (1931) 34 Bom. L.R. 395, a bench of this Court, of which I was a member, refused to follow it, and Mr. Justice Patkar held that we were bound by the decision of the division bench in Chholalal v. Manilal : (1913)15BOMLR551 . That was a case of eaves.. Then there is the case of Rathinavelu Mudaliar v. Kolandavelu Pillai I.L.R. (1906) 29 Mad. 511. There a man erected a building overhanging the land of another. Finally there are two cases reported in 15 Bom. L.R. One of them is Chhotalal V. Mcmilal, and the other is Mulia Bhana v. Sundar Dana : (1913)15BOMLR876 . In both cases the question was about eaves. In the first case the decision was 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 that other's property. In the other case the decision was on the same lines.
4. It is dear then that if the projection in this suit is a projection of the nature of eaves, then the plaintiff obtained an easement only. Whereas if it was a projection which cannot be disturbed without endangering his house or entailing fundamental alterations to his house, it gives him a right of ownership.
5. Mr. Desai who has very clearly stated the case for the respondent would distinguish between eaves, whose function is to carry off rain water, and a pankh whose function is to protect the wall. But I do not see any clear difference. Both are adjuncts to a wall or to a house for the protection of that house or for the comfort of the occupants. In both cases the position of the eaves or pankh can be altered without endangering the house and both are quite distinct from beams or roofs which have been dealt with in the cases I have mentioned.
6. Mr. Desjii also says that even if it be mere easement, he is entitled to retain it since he has enjoyed it for more than twenty years. The answer to this is that the defendant in building his wall or house must see that the plaintiff is given a pankh or wing, or something similar which will answer the same purpose. Therefore as the learned Subordinate Judge has found that the whole purpose of this projection is to preserve plaintiff's own building, I think he was right in holding that the defendant was entitled to remove it. Accordingly I disagree with the learned District Judge and agree with the learned Subordinate Judge.
7. The result is that this appeal must be allowed with costs. The decree of the lower Court must be amended in accordance with the judgment. The whole suit must; therefore, be dismissed with costs throughout.