1. The parties in this case are the owners of adjoining houses in Ahmedabad. The defendants-respondents raised the height of their house and in so doing cut off a pankh or weather-board projecting from the side wall of the plaintiffs' house over defendants' land. It appears that this was mostly done after the suit was filed. The plaintiffs sought an injunction against the cutting of the pankh and for the restoration of what had been cut. They also alleged that the defendants had made certain encroachments on their wall and prayed for the removal of these.
2. The trial Court found that there had been a slight encroachment on the first floor and ordered its removal, but it dismissed the suit otherwise. The parties were ordered to bear their own costs. In appeal the Assistant Judge dismissed the appeal with costs.
3. In this second appeal learned counsel for the appellants-plaintiffs contends that his clients were entitled to relief either by mandatory injunction or at any rate by damages in respect of the cutting of the pankh and that they should have been given their costs also in that connection. It is further contended that the Courts ought to have found that there was an encroachment on the ground floor as well as on the first floor. As to this last point both the lower Courts have found as a fact that, there is no encroachment on the ground floor, and I do not consider that any substantial point of law arises.
4. But I think the lower Courts are clearly wrong in holding that the plaintiffs are entitled to no relief whatever in respect of the pankh. It is now settled law that a projection of this kind is an easement and not a trespass or occupation of property giving rise to any rights to the property covered by the projection by adverse possession. The authorities on that point are Chhaganlal v. Hemchand (1931) 34 Bom. L.R. 395, Shrinivas v. Balvant : (1913)15BOMLR533 , Mulia Bhana v. Sundar Uma : (1913)15BOMLR876 and a recent judgment of Mr. Justice Barlee in Dahyabhai v. Hiralal . The right being a right by way of easement, it has to be acquired like any o : AIR1936Bom3 ther easement by grant or prescription. In this case it has admittedly been acquired by prescription, and therefore under Section 15 of the Indian Easements Act the right is absolute. The plaintiffs have a right of suit on the disturbance of their easement and are entitled to relief either by way of damages or injunction : Sections 33 and 35 of the Indian Easement Act V of 1882. There is a proviso to Section 33 that the disturbance of the easement must haw actually caused substantial damage to the plaintiff. But expression 1 to the section says that the doing (j any act likely to injure the plaintiff by affecting the evidence of the easement is substantial damage within the meaning of the section. As the defendants have actually cut away the plaintiffs' pankh, it is a clear case of an act affecting the evidence of the easement. In spite of what appears to be the plaintiffs' manifest legal right, and in spite of the fact that the defendants proceeded to cut the pankh after the suit was filed, it has been held by the lower Courts that the plaintiffs are entitled to no relief whatever and they have even been deprived of their costs. This seems to me to be both unreasonable and contrary to the law.
5. The trial Judge thought that an injunction was unnecessary because pecuniary compensation would suffice. But he did not award any pecuniary compensation. The Assistant Judge thought that the plaintiffs had no grievance at all. He says in this connection :
The column of air space below and above this (the pankh) belonged to the defendants. Now, if defendants build over it and in doing so completely protect the plaintiff's wall then he can have no grievance. The very justification for the pankh was the protection of this wall, and if that is given by the defendants' wall the plaintiff can have no grievance whatever. Whatever relief he could have got before the pankh was actually cut, he cannot have any grievance after it is cut and the defendants build their wall right through and protect plaintiff's side wall.
6. This may be a good argument as long as the defendants' wall is there. But the defendants may not always have a wall in that place, and in the meantime the plaintiffs' right has been forcibly put an end to and the evidence of it destroyed. The learned advocate for the respondents suggested that the easement might be taken to have been extinguished when the defendants raised their building and cut off the pankh. The Indian Easements Act states in what circumstances an easement may be extinguished. The only section which can be pointed to as having any relevancy is Section 42 which says that an easement is extinguished when it becomes incapable of being at any time and under any circumstances beneficial to the dominant owner. That section is very cautiously worded, and for the reason I have already given, viz., that the defendants' building may not always be there, it is impossible to say that the easement is incapable of being beneficial to the plaintiffs at any time and under any circumstances. If any authority be needed as to the plaintiffs' right to relief for the disturbance of their easement it will be found in Nasarbhai Ahmedbhai v. Munshi Badrudin I.L.R. (1891) 16 Bom. 533.
7. The question then is what relief should be awarded to them. If they were to be given relief by mandatory injunction it would only mean that the defendants would be required to make a slit in the wall of their house and to insert the plaintiffs' pankh therein. This would doubtless be extremely inconvenient to the defendants and would hardly be of any material benefit to the plaintiffs. I agree with the trial Court that damages will suffice. Although, as I have said, the damage is substantial so as to give a right of suit under Section 33, it can hardly be said that it is very serious. The measure of damages strictly speaking would be the difference between the value of the plaintiffs' house with this easement and its value without it, and I doubt very much if the difference would be at all considerable. In my opinion the damages to be awarded should be in a sense nominal. At the same time they should not be contemptuous, because the plaintiffs were perfectly entitled to bring this suit in view of the unjustifiable conduct of the defendants in cutting the pankh without leave obtained. I think further that the plaintiffs are entitled to get their costs so far as the suit related to the pankh. I allow the plaintiffs Rs. 50 by way of damages and I direct that they get half their costs throughout from the defendants who will pay their own.