Om Parkash, J.
1. The facts, in this appeal, against an appellate judgment of the learned District Judge, Simla, briefly, are:-
The property, old No. 153, new numbers Shops Nos. 57 and 58, a three storeyed building, situated in Lower Bazar, Simla, belonged to one Kali Das Chakraverty. He sold it to Rupa and Nihala on the basis of a registered sale-deed, Ex. P.W. 1/1, dated 28-8-1881. The successor-in-interest of Rupa and Nihala had partitioned the property. Shop No. 57 fell to the share of Devi Chand (P.W. 1), grandson of Nihala, and Shop No. 58 fell to the share of Devki Nandan, Plaintiff No. 3. Devi Chand (P.W. 1) sold shop No. 57 to plaintiffs Nos. 1 and 2 on the basis of the sale-deed Ex. P.W. 2/1, dated 15-10-1962. On the northern side of Shops Nos. 57 and 58 is situated a building known as Garib Manzil. This building belonged to a Muslim, who had migrated to Pakistan. Garib Manzil and vested in the custodian. The building was auctioned and was purchased by the defendant. In between shops Nos. 57 and 58 and Garib Manzil, there is a drain and dry area. The plaintiffs had filed a suit, out of which the present appeal has arisen, for the issue of an injunction. The suit was originally filed by plaintiffs Nos. 1 and 2. On the application of plaintiff No. 3, he was addedas a co-plaintiff by the order of the trial Court dated 28-8-1968. By the same order, the trial Court allowed certain amendments in the plaint. The allegations in the amended plaint were that the proprietor of Garib Manzil, the defendant, had started construction to his own property and had carried out extensive repairs to the ground floor thereof in May, 1964, that while effecting repairs, the defendant had encroached upon the property of the plaintiffs by putting up a slab at ground level (?) of his own building, covering not only the dry area and the drain which belonged to the plaintiff, but also the roofs of the latrines and a part of the roof of the godown of the plaintiffs, that the roof of the plaintiffs' property under the slab was half century old and could not possibly bear the weight of the new construction, that the defendant had illegally constructed a room over the slab and the water from the room fell on the Dhajji wall of the property of the plaintiffs, thereby causing damage and that the above ations of the defendant were illegal. The plaintiffs prayed for a decree for mandatory injunction, ordering the defendant to demolish the construction made by him over the land and building of the plaintiffs. They also prayed for a decree for the issue of a permanent (injunction against?) raising any kind of super structure or over-hanging super structure on any part of Shops Nos. 57 and 58.
2. The defendant contested the suit. He denied that the drain and the dry area between Garib Manzil and the two shops belonged to the plaintiffs. The plea of the defendant ws that the alley and the dry area were joint property of towners of Garib Manzil and the owners of Shop No. 57 and that the upper portion thereof had been in exclusive possession and occupation of the owners of Garib Manzil since the year 1922. The defendant denied that the slab and the room on the slab had been constructed in 1964. He pleaded that the slab was in existence since 1922 and was as approach-passage to Garib Manzil. The defendant, further, pleaded that in 1964 he had carried out only some repairs to the slab and had replaced the Dhajji walls with thick puce brick walls and the worn out wooden pillars and wooden flooring by concrete pillars, with a view to protect the property and increase its life.
3. The trial Court held that the drain and the dry area was not the exclusive property of the plaintiffs but was the jont property of the parties. The trial Court, further, held that the slab, in dispute, had been constructed before 1922 and that the owners of Garib Manzil had, after the expiry of 12 years, acquired absolute right, by adverse possession, over the slab, and over the column of the air and that those owners were entitled to make any construction on the slab. An objection was taken, before the trial Court, that as the defendant, in his written statement, had not pleaded acquisition of absolute right by adverse possession, and no specific issue was framed, the defendant could not raise the question of adverse possession at the time of arguments. The trial Court rejected this objection, holding that the defendant had pleaded in the written statement that he was in exclusive possession of the shape above the drain and dry area and that his predecessor-in-interest had constructed a slab in 1922, overhanding the space over the dry area and the godown of the plaintiffs and that in view of the aforesaid allegations in the written statement the plaintiffs were not taken by surprice and no prejudice had been caused to them by the plea of adverse possession.
4. As a result of its findings, the trial Court dismissed the suit.
5. Aggrieved by the decree of the trial Court, the plaintiff had gone up in appeal. The appeal was dismissed by the learned District Judge, who affirmed all the findings of the trial Court. Hence, the present second appeal.
6. The concurrent findings of fact of the two Courts below that the drain and the dry area was joint of the parties and that the slab had been constructed by the owners of Garib Manzil before the year 1922 and it had been in their exclusive possession and use since its construction are supported by evidence and are not, thereforee, open to challenge in second appeal. As already stated the old number of shops Nos. 57 and 58 was 153. The property No. 153 belonged to Kali Das Chakravarty, who had sold it, on the basis of the sale-deed Ex. P.W. 1/1, to Rupa and Nihala, who were the predecessors-in-interest of the plaintiffs. It is stated in the sale-deed, that the proeprty was bounded on the north by the retaining wall of Rajab Kashmiri, a drain and the house of the Kashmiri. The house of Rajan (b?) Kashmiri is now known as Garib Manzil. The sale-deed Ex. P.W. 1/1 the document of title of the plaintiffs shows that the retaining wall of the house of Rajab Kashmiri extended up to the dry area and the drain.
7. There is also another important piece of documentary evidence which leads to the inference that the dry area was the joint property of the owners of Garib Manzil and the predecessor-in-interest of the plaintiffs. It appears that suit was instituted, on behalf of Brij Raj Saran, who was a minor, against Mohiuddin, Safulla Shah, Abdul Azib, Dasondhi Mal, Narain Dass and Ram Lok, for the issue of a perpetual injunction. Abdul Aziz owned Garib Manzil. Dasondhi Mal, Narain Dass and Ram Lok were the owners of Shops Nos. 57 and 58. The suit was for the removal of certain posts and pipes fixed by the defendants in that suit, in a narrow alley between the house of the plaintiff, Brij Raj Saran, on one side and Garib Manzil and Shops Nos. 57 and 58, on the other. The copy of the plaint in the suit is Ex. D-2. The copy of the plan filed in the suit, is Ex. D. 5. Ex. D-1 is the copy of the judgment passed in the suit. It was held by the Court in that suit that the defendants, in that suit, were joint owners of the alley from its entrance at the stair-case to the point 16 ft. With the alley. The suit of Brij Raj Saran was dismissed with respect to the aforesaid 16 ft. From a perusal of the plaint Ex. D-2, the plan Ex. D.5 and the judgment Ex. D.1, in the above suit, and the plan Ex. D. W. 1/1, filed by Abdul Aziz in the Municipal Committee, Simla, for permission to repair the old slab, and the plan Ex. P.W. 6/2, prepared by Shri Amar Singh (P.W. 6) in the present suit, it is clear that the aforesaid 16 ft., constituted the present dry area.
8. The plaintiffs, in the plaint, did not claim that the slab was constructed by them or belonged to them. Their specific case was that the slab had been built by the defendant in 1964. In the replication, the plaintiffs claimed ownership of the slab. This plea, in the replication, was inconsistent with the plaintiffs' case in the plaint that the slab had been cosntructed by the defendant. The plaintiffs could not be permitted to raise this plea without amending the plaint.
9. The only question is whether the slab was constructed by the defendant in 1964, as alleged by the plaintiffs, or by the predecessor-in-interest of the defendant in 1922 or even before that. The documents, filed in the suit of Brij Ram Saran, especially the plan Ex. D. 5, show that the slab existed at the time of the suit which was filed in 1916. Abdul Aziz had filed the plan Ex. D.W. 1/1 in the Municipal Committee in 1921. Slab was shown in that plan. Amar Singh(P.W. 6) admitted that the slab was about fifty years old. Devi Chand (P.W. 1) also afmitted the existence of slab since long.
10. It appears that the owners of Garib Manzil had constructed the slab for using it as a passage as there was no other passage to the building. That the passage to Garib Manzil was over the slab and there was no other passage was deposed to by Hem Datt (D. W. 4) who was Rent Collector, in the office of the Custodian, from 1952 to 1960. Inder Pal bali (D.W. 5), Lal Chand (D.W. 7) and Inder Sain (D.W. 8). Amar Singh (P.W. 6) had admitted that the slab provided a passage to the ground floor of Garib Manzil and that there was no other passage.
11. There is no evidence on record that the slab was constructed by the defendant in 1964.
12. The only conclusion from the above discussion, is that the slab existed before 1922 and it was in the exclusive possession and use of the owners of Garib Manzil, since its existence.
13. The next question is whether on the findings that the drain and the dry area was joint property of the owners of Shops Nos. 57 and 58 and the owners of Garib Manzil and that the slab, which was constructed before 1922, was in exclusive possession of the owners of Garib Manzil justify the conclusion of the two Courts below that the owners of Garib Manzil had acquired title by adverse possession to the space occupied by the slab continuance. The contention of the learned counsel for the appellants was that the conclusion is not justified. His argument was two-fold. Firstly, it was argued that title by adverse possession cannot be acquired to the space or column of air above the land by constructing an over hanging structure over the land and such an act can, at the most, amount to an easement. The learned counsel cited Mulia Bhana v. Sunder Dana Air 1914 Bom 243, Kashibhai Kalidas v. Vallavbhai Wagjibhai, Air 1922 Bom 83 and Chagan Lal v. Hem Chand Air 1932 Bom 224. The cases cited seem to support the argument of the learned counsel for the appellants, though all the cases related to overhanging eaves for the discharge of water and not to an overhanging slab or an overhanging structure. The cases cited were considered in State of Indore v. Visheshwar Bhattacharya : AIR1934All1054 and were not followed. The learned Judges of the Allahabad High Court agreed with the decision of the Madras High Court in Rathinavelu Mudaliar v. Kolandaverlu Pillai (1906) 29 Mad 511 wherein it was observed:-
'Where a man erects a building overhanging the land of another, he commits a trespass for which an action will lie against him and he will by prescription acquire a right to the space occupied by such projection and the right to maintain it in its position. A cornice overhanging in neighbour's land cannot be removed by such neighbour if it has been in existence for more than 12 years.'
14. After referring to the above observations, the learned Judges of the Allahabad High Court remarked:-
'This view, which is the one that was adopted in the earlier Bombay rulings appears to be based on the reasoning that as the space above land is one of the benefits arising out of the ownership of that land, it is part of the immovable property of the owner of the land, and any trespass upon it will be an act of adverse possession. We might be inclined to go even further and to hold that the space above the land is itself immovable property. As the owner of the soil is the owner of the space above it, and as there can be no ownership without property, it follows that the space above the land is property, whether movable or immovable, and it needs scarcely be pointed out that it is not movable property. So it would seem to follow as a necessary inference, that it is immovable property.
15. I am in respectful agreement with the decision and the views expressed in the Madras and Allahabad cases. It follows that the owners of Garib Manzil who were in adverse possession of the space occupied by the slab for more than twelve years had acquired title to the space by adverse possession.
16. Secondly, it was argued by the learned counsel for the appellants that the defendant, who was a joint owner with the appellant of the dry area, would be deemed to be in possession of the space over the dry area on behalf of all the joint owners and could acquire title by adverse possession only by establishing ouster of the appellants but there ws no evidence to that effect. Now, the predecessors-in-interest of the defendant had constructed the slab more than fifty years before the institution of the suit by the plaintiff. They were exclusively using the slab. Thus, there was open assertion of hostile title to the space by them. The predecessors-in-interest of the plaintiffs had knowledge of the enjoyment of the space, occupied by the slab, by the owners of Garib Manzil. It is clear that there was ouster of the appellants from the space occupied by the slab and the possession of the above space, by the owners of Garib Manzil was adverse as against the appellants and the owners had acquired title to the space by adverse posssession for more than twelve years.
17. Lastly, it was contended by the learned counsel for the appellants that as there was no plea of adverse possession in the written statement and there was no issue on the point, the trial Court gravely erred in permitting the defendant to raise the plea of adverse possession at the time of arguments. It is true that the plea of adverse possession was not taken up expressly in the written statement but the defendant had stated that he was in exclusive possession of the slab since 1922. The issues, framed in the case related to the encroachment, made by the defendant. Issue No. 3 read 'Whether the slab in question has been in existence since long? If so, since when and with what effect?' Parties had led evidence on this issue. In view of the above circumstances, it is to be held that the appellants were not taken by surprise by the plea of adverse possession and were not prejudiced. The concurrent decisions of the Court below cannot be vacated on the ground that the defendant was permitted to urge the plea of adverse possession, though he had not taken up that plea specifically in the written statement.
18. No other point was urged in this appeal which falls and is dismissed with costs.
19. Appeal dismissed.