Pazhaniandi Bakthar and Another vs Co-operative Urban Bank Ltd.

Anantanarayanan, J.—The first and second defendants are the appellants in an action by the Cooperative Urban Bank Ltd., Kumbakonam

(plaintiff) for a mandatory injunction and for damages. It is not necessary to set forth the particulars upon which the suit was based, at any great

length. ""It is sufficient to observe that, according to the plaintiff bank, the house property immediately to the west of the bank building belonged to

the two defendants, and that they reconstructed, their house in such a manner as to obstruct the passage of light and air into the open windows of

the bank buildings. This construction of a wall by the defendants above the proofing of their old building and immediately adjoining the windows of

the bank building on the upper floor, has resulted in the diminution of accustomed light and air.

The trial Court framed the necessary issues, and since the plaintiff bank reserved the basis of suit relating to denial of accustomed light and air by

virtue of the wall erected by defendants (appellants), for separate action, dismissed the suit outright.

The matter went up on appeal to the learned Subordinate Judge, Kumbakonam. I must make it plain here that the reservation that I earlier

referred to occurred in the appellate Court and not in the trial Court. Actually, the District Munsif who tried the suit thought that, even without the

reservation, the bank did not established its right to light and air through those windows. The reservation is perfectly explicable. The bank building

was built in the year 1938, and this suit was instituted in 1958 so that 22 years had not expired between the construction of the bank and the claim

by the bank. In any event, a part of the suit, namely, the claim in regard to light and air was thus sequestrated and taken outside the scope of the

appeal. It is also no longer before me in second appeal.

It would thus appear that there was very little basis of claim left for any further determination. However the learned Subordinate Judge pointed

that the bank had created a cornice which abutted into the land of the defendants (appellants) and which had been in existence for 12 years prior

to the suit. The learned Subordinate Judge referred to Ratnavelu Mudaliar v. Kolandaivelu Pillai, 16 MLJ 281 and observed that, as this

construction, namely, the cornice and certain sun-shades over the windows had been in existence for more than 12 years, the bank should be

deemed to have acquired a right for them by way of prescription. The learned Subordinate Judge thought that the report of the Commissioner

disclosed that the whole erection by the defendants (appellants) immediately adjoining the bank building was actually built over the cornice, in

physical contact with it. In this view, the learned Judge concluded that this wall was an encroachment, and he gave a decree for a mandatory

injunction directing its removal.

The learned counsel for the appellants contends before me, not without some plausibility and force, that the matter was never made explicit in

the pleadings nor in the reliefs prayed for in the plaint, which were largely concerned with the question of the right of light and air, now reserved for

some other action between the parties. I have seen the Commissioner''s plan, though, unfortunately, there is no photograph of the actual structures.

The cornice is a horizontal abutment strictly following the definition in the Oxford Dictionary ""a horizontal moulded projection crowning a building.

I am not really very clear whether the defendants (appellants) have built an upper wall physically based on the cornice; it must certainly be a

difficult engineering feat, to have done so. If the appellants have done so, I do not think it could be disputed for the moment that they are not

entitled to do so, and that the wall will have to be removed to the extent to which it is in physical contact with the cornice, and is physically resting

in it.

A very similar case on the facts in Tilokchand v. Dhundiraj, AIR 1957 Nag 2. A Bench of that Court (Nagpur) held that while the adjacent

owner was entitled to build above and below a projection, for the reason that the person from whose property the structure projected might

acquire an easementary right by prescription to such projection, but did not acquire any such right to the space below or above, still it was very

clear that no such wall could be physically based on the projection itself. If it is so based, it is an encroachment which ought to be removed. For

this reason, I clarify the injunction granted by the Court below to the effect that the appellants are bound to remove only any wall that is physically

based on the cornice for its foundation. If the wall is not in physical contact with the cornice, the appellants would appear to be entitled to possess

any such wall, both below and above the cornice, as far as the findings in the present suit between the parties are concerned. With this clarification,

the second appeal is dismissed. The parties will bear their costs here. No leave.