1. In this case the plaintiff abandoned at the hearing his claim that certain windows in the west wall of his building were ancient windows and that he was entitled to an easement of light and air through the said windows. He has confined his claim to an alleged right to open the shutters of the said windows on the defendants' property, and, further, to maintain weather-frames on the windows in the west wall on the second and third floors of the plaintiff's building as they exist at present. The said right to open the shutters at will and to maintain the said weather-frames on the windows is based on the ground that the said windows have been so opened and the said weather-frames have been in existence for more than twelve years and that the plaintiff is entitled to the said rights not by way of easement but by way of adverse possession of the column of air on the defendants' property, in which the said shutters open and on which the said weather-frames project.
2. The defendants have contended that the right to open the shutters of the windows as well as the right to maintain the weather-frames on the windows are in the nature of an easement and they can be acquired only, under the Indian Easements Act, by enjoyment for twenty years prior to the date of the suit. It is conceded by the plaintiff that if the said rights can only be acquired by way of easement, he has not done so, and ha must fail.
3. The question as to the nature of the right acquired by the owner of one tenement having a part of his tenement projecting over his neighbour's tenement was considered in Mohanlal Jeohand v. Amratlal Bechardas I. L. R.(1878) 3 Bom. 174 In that case the projecting part was the roof of the defendant's house. The said roof had projected for more than thirty years. Therefore, in either view of the case whether it was treated as an easement or as possession of the space occupied by the projecting roof, the defendant was entitled to succeed. Mr. Justice West, however, expressed his opinion, that the view that the enjoyment by the defendant of the right to project his roof was in the nature of possession by him of the space occupied by the projecting roof, commended itself to the Court.
4. The question again came before this Court in Ranchod Shamji v. Abdulabhai Mithabkai I. L. R.v 28 Bom. 428 6 Bom. L. R. 356. There the question was whether the plaintiffs beams which were over-hanging the defendant's soil gave the plaintiff a right to the column of air above the said beams. Jenkins C. J., who gave the judgment of the Court, held that the defendant being the owner of the soil was entitled prima facie to all above it, that the diminution in his rights by reason of the beams did not oxtend beyond the protrusion of the beams themselves, that is to say, so far as the beams protruded on the defendant's soil, the plaintiff was entitled by possession to the column of air on which the beams rested. He relied upon the judgments in Corbett v. Hill (1870) L. R. 9 Eq. 671 and Harris v. De Pinna (1886) 33 Ch. D. 238 . Those cases clearly lay down that where any part of the house of one owner projects over the soil of the neighbouring owner the right acquired by the first owner is in the nature of possession of the column of air occupied by the said projection and that the said right is in the nature of the diminution of the freehold of the neighbouring owner and not merely in the nature of an easement.
5. It was contended before me by Mr. Bahadurji on behalf of the defendants that in view of the definition of ' easement' in the Indian Easements Act those cases do not apply to India. The ' easement' in defined by Section 4 as follows :-
An easement is a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in Or upon, or in respect of certain other land not his own.
6. Mr. Bahadurji has argued that the opening of the windows and the maintenance of the weather-frames being for the benefit of the dominant tenant, the rights acquired in respect thereof come within the definition of 'easement,' In my opinion, the fallacy in the argument is this that whatever is for the benefit of the dominant tenant must be an easement and cannot be anything else. The enjoyment of the freehold is also for the benefit of the dominant owner. The right of easement is something less than the right of freehold and that something can be acquired for the benefit of the freehold under certain circumstances as laid down in the Indian Easements Act, but that does not mean that whatever is for the benefit of the dominant owner must necessarily be an easement and nothing else.
7. Mr. Bahadurji has relied upon two later judgments of this Court in support of his contention, namely, Chotalal Hirachand v. Manilal Gagalbhai I. L. R. V 37 Bom. 491 Section c. 15 Bom. L. R. 551 and Mulia Bhana v Sundar Dana I. L. R.(1913) 38 Bom. 1 15 Bom. L. R. 876. The question in those cases was a claim to maintain eaves projecting on the defendant's soil for the purpose of discharge of water on the defendant's land. Now the right to discharge water over the defendant's land clearly can never be in the nature of possession of freehold. It must necessarily be in the nature of an easement. The cases, therefore, are not directly in point so far as the claim to maintain a projection over the defendant's soil, which may be in the nature of possession, is concerned.
8. The learned Chief Justice has tried to distinguish the decisions in Gorbett v. Hill and Ranchhod Shamji v. Abdullabhai Mithabhai. He concedes that the projection in Corbett v. Hill was reserved from the freehold by the transferor, which means that a projection on the neighbour's soil might be in the nature of a freehold: if it could not be, then, it could not be reserved oven by the transferor. If such a part of the Freehold could be reserved by the transferor by allowing a projection on his own soil, there is, no reason why the neighbouring owner should not be entitled to acquire a right to such projection by adverse possession by encroaching upon the freehold of his neighbour to the extent of the projection.
9. Mr. Bahadurji had to contend that possession could only be of the soil and everything above and everything below it: and that there could not be possession of a column of air over-hanging the soil, because once it is conceded that you can have freehold in a projection over-hanging on the defendant's soil, and occupying a certain column of air above that soil, a neighbouring owner would be entitled by adverse possession to claim such a right in freehold, What was considered in Gorbett v. Hill was whether the projection carried with it the right not only to the column of air occupied by the projection but the air above and the air below it to the soil, and the Court held that the possession was only of the column of air occupied by the projection and that the column of air above and below belonged to the neighbouring owner who was the owner of the soil.
10. The same principle is laid down in Harris v. De Pinna (1888) 33 Ch. D. 238 . In that case also the projection was treated as part of the freehold and the claim to the air above the projection which was in dispute was considered to be in the nature of an easement. There was no question in that case of the plaintiff being entitled to maintain his projection which had been there for twelve years.
11. The point was also considered in Rathinavelu Mudaliar v. Kolandavelu Pillai I. L. R. (1908) Mad. 511. The Madras High Court followed the decision in Mohaniai Jechand v. Amratlal Eeahardas, and held that the cornice over-hanging a neighbour's land could not be removed, if it had been in existence for more than twelve years. There also it was held that such projection was in the nature of possession and not an easement.
12. A later English case, Laybourn v. Gridley (1892) 2 Ch. 63 was also cited to me where Corbett v. Hill was followed by the learned Judge.
13. The last case cited before me was a judgment of this High Court in Kashibai Kalidas Patel v. Vallavbhai Wagjibhai Patel : (1922)24BOMLR305 . There also the right in question was the right of the discharge of water from the eaves of the defendant on to the plaintiff's land. In that case, the real point considered was the right which was claimed, namely, to discharge rain water from the projecting eaves. There the learned appellate Judge, from whose judgment the appeal was preferred to this Court, held that the plaintiff had lost his title to the land up to the line of the defendant's projection, Macleod C. J. rightly criticised that decision as very startling and obviously wrong. No doubt even where the projection exists over a neighbour's property for more than twelve years, the person owning the projection cannot claim anything more than the right to possession of the column of air which the projection occupies.
14. The point which is before me was not before this Court in any of these three subsequent cases, but in my opinion, it was directly in issue in the first two cases of Mohanlal Jechand v. Amratlal Bechardas I. L. R.(1878) 3 Bom. 174 and Ranohod Shamji v. Abdvdabhai Mithabhai I. L. R.(1904) 28 Bom. 428 6 Bom. L. R. 356 . I entirely agree with the views in those judgments. I hold that the plaintiff having opened his shutters and maintained his weather-frames projecting for more than twelve years on the defendants' soil, he has acquired a right thereto by adverse possession, and he is entitled to an injunction against the defendants restraining them from building so as to interfere with the right of the plaintiff to open the shutters on the defendants' land or to interfere with the said weather-frames.
15. There will, therefore, be a decree in favour of the plaintiff for an injunction restraining the defendants from building so as to interfere with the weather-fraines and the column of air on which the plaintiff's shutters open. Plaintiff to pay all the defendants' costs occasioned by the plaintiff's claim as regards easement of light and air, and the defendants to pay the plaintiff's costs of the issues raised in the suit.