1. The finding of the lower appellate Court is that the defendants protruded their eaves on the plaintiffs' roof in the year 1909. The suit was instituted in 1927 about eighteen years after the protrusion of the eaves. The lower appellate Court directed that the defendants should not allow their eaves to protrude over the plaintiffs' roof.
2. On behalf of the appellants it is contended that where a person erects a building overhanging the land of another he commits a trespass and acquires by prescription a right to the space of air occupied by such projection, and reliance is placed on the case of Bahadarmal v. Mohanlal (1924) 27 Bom. L.R. 536, where it was held that if 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 judgment of the single Judge is inconsistent with the decisions of the Division Bench of this Court in Chotalal Hirachand v. Manilal Gagalbhai ILR (1913) 37 Bom. 491 : 15 Bom. L.R. 551 and in Kashibhai v. Vallavhbai : (1922)24BOMLR305 .
3. In Ghotalal Hirachand v. Manilal Gagalbhai it was held 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 property. Previous cases were referred to and the Court came to the conclusion that the possession of eaves was not an occupation of another person's property. This decision was followed in the case of Mulia Bhana v. Sundar Dana ILR (1913) 38 Bom. 1 : 15 Bom. L.R. 876.
4. In Kashibhai v. Vallavbhai it was held that all that the defendant could acquire by prescription in the case of a projection of eaves would be an easement imposing the burden on the servient tenement of having that projection over it. Even if the defendant acquired the right to project his roof over the plaintiff's land and to discharge rainwater over it, he could not acquire a title to the plaintiff's land and his rights would be in the nature of an easement which he could only acquire either by grant or by prescription.
5. The case of Corbett v. Hill (1870) L.R. 9 Eq. 671 has been distinguished in the case of Chotalal v. Manilal on the ground that the case arose out of a transfer of part of a property to another and turned on the question as to how much was reserved from the freehold.
6. In Mohanlal Jechand v. Amratlal Bechardas ILR (1878) 3 Bom. 174 the roof of the defendant's house projected for more than thirty years and could not be removed whether the projection was considered as an easement or possession of the space occupied by the projecting roof.
7. In the case of Ranchod Shamji v. Abdulabhai Mithabhai ILR (1904) 28 Bom. 428 : 6 Bom. L.R. 356 the projecting beams of the plaintiff were forty years old and the question was whether the plaintiff was entitled to the column of air above them, and it was held that he had not the right but the defendant being the owner of the soil was entitled to all above it and the diminution in his rights by reason of the beams did not extend beyond the protrusion of the beams. The question under consideration did not directly arise for consideration in that case.
8. It is difficult to hold that the column of air occupied by a projection over the land of a neighbour is immoveable property or any interest therein within the meaning of Article 144 of the Indian Limitation Act unless it is covered by the words ' benefits to arise out of land' within the meaning of Section 3, (Clause 25), of the General Clauses Act, X of 1897. On the other hand, projection of eaves resulting in discharge of rain-water is an easement according to illustration (b) of Section 23 of the Indian Easements Act. The theory of occupation of column of air by eaves and projecting beams has not been extended to overhanging branches of a tree over the neighbour's land. See Hari Krishna Joshi v. Shankar Vithal ILR(1894)19 Bom. 420. I may refer in this connection to Broom's Legal Maxims, 9th edition, pages 261 to 263.
9. We are bound by the decisions of the Division Bench of this Court and think that the view taken by the lower appellate Court is correct, and, therefore, this appeal must be dismissed with costs.
1. I agree. Mr. Divatia has asked us to refer this case to a full bench to decide between the view taken by Mr. Justice Taraporewala in 1924 and that taken by two benches of this Court in the cases of Chotalal Hirachand v. Manilal Gagalbhai ILR (1913) 37 Bom. 491 : 15 Bom. L.R. 551 and in Kashibhai v. Vallavbhai : (1922)24BOMLR305 . This, however, does not seem to be a good case to refer to a full bench, for, even if we accept the judgment of Mr. Justice Taraporewala, the defendants must fail as they have not proved that they have had any exclusive possession of the plaintiffs' land. They are bound to claim ownership of the soil since they rely on Article 144 of the Indian Limitation Act. They claim ownership owing to their occupation of the portion of the soil underneath their eaves; but it is admitted that beneath their eaves are the eaves of the plaintiffs, and, therefore, all the time the plaintiffs have had similar occupation and enjoyment of this portion of the soil. Therefore, in my opinion, the defendants cannot be said to have had any exclusive possession,
2. Mr. Divatia has asked us to set aside the mandatory injunction on the ground that it will cause great hardship to his client. I cannot see personally that there is any particular hardship, for all that he will have to do is to cut off a few inches from his eaves.