Ghulam Hasan vs Ghulam Ali

S. Murtaza Fazl Ali, C.J.—This is a defendant's second appeal against a decree passed by the courts below restraining them by an

injunction from making any construction on the land in suit measuring 11/2 x 30'.

The plaintiff's case was that he had projected his eaves on his own land for a period of more that 12 years and the defendant was going to

construct a drawing room with a view to close the eaves opened by the plaintiff. Hence the plaintiff prayed that the defendant be restrained from

doing so.

The suit was resisted by the defendants mainly on the ground that the land on which the eaves were protruding did not belong to the plaintiff at

all and therefore he had no right to extend the eaves on the land in question. The trial court did not give any finding on the question of ownership

but held that the plaintiff had obtained a prescriptive right over the disputed land by being in possession of it or by exercising possession over it for

a period of more than 12 years. He accordingly decreed the plaintiffs suit. On appeal, the D. J. upheld the decision of the trial court. Hence this

second appeal.

The only question of law that was argued before us was that the act of protruding the eaves was not capable of being acquired by adverse

possession. Counsel for the respondent, however, relied on a decision of a Division Bench of the Allahabad High Court in State of Indore Vs.

Visheshwar Bhattacharya and Another, for the proposition that the plaintiff could have acquired the right of prescription by projecting his eaves for

a period of more than 12 years, on the footing that a person in possession of a space on ground would also be deemed to be in possession of the

space above. We find ourselves in complete agreement with the view taken by the Allahabad High Court which was also the view taken by the

Madras High Court in ILR (1906) Mad 511 and an earlier decision of the Bombay High Court in AIR 1914 Bom 243. Their Lordships of the

Allahabad High Court observed as follows :-

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 need 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. This being so, the defendant-respondent in the present case has made good his title because he

has been in adverse possession for over 12 years.

It is true that a later decision of the Bombay High Court in AIR 1922 Bom 83 has taken a contrary view, but we prefer to choose the proposition

adumbrated by the Allahabad High Court in the aforesaid decision. In these circumstances the first contention raised by the appellant is overruled.

It was next contended by the appellant that the plaintiff had only prayed that the defendant be restrained from constructing the drawing room but

since the drawing room has already been constructed and no amendment has been sought for by the plaintiff in his plaint, the injunction has become

infructuous and inexecutable. Indeed if the drawing room has already been constructed the question of issuing an injunction restraining the

defendant from constructing the drawing room does not arise and the decree therefore becomes inexecutable.

There is no merit in this appeal which is therefore dismissed but in the circumstances without any order as to costs.

Appeal dismissed.