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Case Number
Advocates
  • S. Malhotra
  • Kailash Chand and S.S. Ahuja
Judges
  • Om Parkash, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S. Malhotra
  • Kailash Chand and S.S. Ahuja
Judges
  • Om Parkash, J.
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Smart Summary

Structured Summary of the Opinion (Om Parkash, J.)

Factual and Procedural Background

The dispute concerns Shops Nos. 57 and 58 (old No. 153) in Lower Bazar, Simla, originally belonging to Kali Das Chakravarty who, by a registered sale-deed dated 28-8-1881 (Ex. P.W 1/1), sold the property to Rupa and Nihala. On partition, Shop No. 57 fell to Devi Chand (P.W.1) and Shop No. 58 to Devki Nandan (plaintiff No. 3). Devi Chand sold Shop No. 57 to plaintiffs Nos. 1 and 2 by sale-deed dated 15-10-1962 (Ex. P.W 2/1).

North of the shops stood a building called Garib Manzil (formerly owned by a Muslim who migrated to Pakistan and which vested in the custodian), later purchased at auction by the defendant. Between Garib Manzil and Shops Nos. 57 and 58 there was a drain and a dry area. Plaintiffs originally (Nos. 1 and 2) filed a suit for injunction; plaintiff No. 3 was added by order dated 28-8-1968 and certain amendments in the plaint were allowed.

The amended plaint alleged that in May 1964 the defendant had carried out construction/repairs to Garib Manzil and encroached on the plaintiffs' property by putting up a slab at ground level covering the dry area and drain and parts of the plaintiffs' roofs; that a room was constructed over the slab and water from it damaged the plaintiffs' property. Plaintiffs sought a mandatory injunction for demolition of the construction and a permanent injunction against any superstructure over the plaintiffs' shops.

The defendant denied the plaintiffs' ownership of the drain and dry area, asserting that the alley and dry area were joint property and that the slab existed since 1922 (or earlier) and had been in exclusive use by Garib Manzil owners; he said in 1964 only repairs were carried out. The trial Court found the dry area to be joint property, held the slab pre-dated 1922, and that Garib Manzil's owners had acquired absolute right by adverse possession; it dismissed the suit. The District Judge affirmed those findings on appeal. The plaintiffs then filed the present second appeal.

Legal Issues Presented

  1. Whether the drain and dry area between Garib Manzil and Shops Nos. 57 and 58 belonged exclusively to the plaintiffs or was joint property of the parties.
  2. Whether the slab in dispute was constructed by the defendant in 1964 (as alleged by plaintiffs) or by the predecessors-in-interest of the defendant in (or before) 1922.
  3. Whether owners of Garib Manzil, by exclusive possession and use of the slab (and the space or column of air occupied by it) for more than twelve years, could acquire title by adverse possession to that space.
  4. Whether the defendant could be permitted to rely on a plea (adverse possession) not specifically pleaded in the written statement, where issues had not expressly framed "adverse possession".

Arguments of the Parties

Plaintiffs' (Appellants') Arguments

  • The slab and room over it were constructed by the defendant in 1964, thereby encroaching upon plaintiffs' property (drain, dry area, roofs of latrines and part of godown) and causing damage.
  • Implicit in their pleadings was the claim that the construction was recent (1964) and therefore could not have given rise to prescriptive rights in favour of the defendant.
  • The learned counsel for the appellants argued as a point of law that title by adverse possession cannot be acquired to the space or column of air above the land by constructing an overhanging structure; at best such occupation gives rise to an easement. In support he 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).
  • Also contended that, if the dry area was joint property, a co-owner (the defendant) could not acquire title by adverse possession against other joint owners unless he established an ouster of those co-owners; no evidence of ouster was, it was argued, produced.
  • Contended that adverse possession was not pleaded specifically in the written statement and no issue was framed; therefore the defendant should not have been permitted to raise it at arguments.

Defendant's Arguments

  • The drain and dry area were not plaintiffs' exclusive property; the alley and dry area were joint property of owners of Garib Manzil and owners of Shop No. 57.
  • The slab was in existence since 1922 (or earlier) and had been in exclusive possession and occupation of the owners of Garib Manzil since its construction.
  • The defendant denied that the slab and the room were constructed in 1964 and pleaded that in 1964 only repairs were carried out — replacing Dhajji walls with brick walls and worn wooden pillars/flooring with concrete pillars — to protect and prolong the building's life.
  • The defendant asserted exclusive possession and use of the slab (and the space it occupied) well beyond twelve years, amounting to acquisition of rights by prescription/adverse possession.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mulia Bhana v. Sunder Dana, AIR 1914 Bom 243 Cited by appellants to support the contention that title by adverse possession cannot be acquired to the space above land (cases concerning overhanging eaves). The court recorded that this Bombay ruling (and related Bombay rulings) supported the appellants' argument but noted that these were considered in State of Indore v. Visheshwar Bhattacharya and were not followed by later reasoning favouring acquisition of rights to the overhanging space.
Kashibhai Kalidas v. Vallavbhai Wagjibhai, AIR 1922 Bom 83 Cited by appellants for the proposition that overhanging projections do not give rise to title by adverse possession to the space above land (analogous to overhanging eaves). The court treated it as part of the Bombay rulings considered (and not followed) in State of Indore, and contrasted it with later Madras/Allahabad reasoning accepting prescriptive rights to projections.
Chagan Lal v. Hem Chand, AIR 1932 Bom 224 Cited by appellants for like purpose (Bombay line on overhanging eaves / water-discharge projections). Similarly noted as supporting the appellants' argument historically but effectively distinguished/treated as not followed in subsequent All.-Madras line of cases relied upon by the Court.
State of Indore v. Visheshwar Bhattacharya, AIR 1931 All 1054 Considered earlier Bombay rulings (like those above) and did not follow them. Court observed that the Bombay rulings were considered in this case and were not followed; the decision in State of Indore thus aligns with authority recognising prescriptive rights to projections/space above land.
Rathinavelu Mudaliar v. Kolandaverlu Pillai, (1906) ILR 29 Mad 511 Stands for the proposition that an overhanging building is trespass but that by prescription (12 years) one may acquire the right to the space occupied by such projection; a cornice overhanging a neighbour's land cannot be removed if in existence more than 12 years. The court expressly adopted and relied on this view (Madras decision) and the subsequent Allahabad reasoning which treated the space above land as part of immovable property susceptible of acquisition by adverse possession; the present judgment follows these decisions.

Court's Reasoning and Analysis

The court proceeded through a fact-finding and legal-analysis sequence based solely on the evidence and the law cited:

  1. Concurrent factual findings of the two courts below (trial Court and District Judge) — that the drain and dry area were joint property and that the slab had been constructed before 1922 and in exclusive possession and use of the owners of Garib Manzil — were supported by documentary and oral evidence and hence not open to challenge in second appeal.
  2. The court examined documentary evidence:
    • Sale-deed Ex. P.W 1/1 (28-8-1881) described northern boundary as the retaining wall of Rajab Kashmiri, a drain and the house of the Kashmiri (now Garib Manzil), indicating the retaining wall extended up to the dry area and the drain.
    • Records from an earlier suit (Brij Raj Saran) filed in 1916 — plaint Ex. D.2, plan Ex. D.5 and judgment Ex. D.1 — showed a 16 ft. area forming the present dry area; those documents and plans, together with a 1921 municipal plan Ex. D.W 1/1 (filed by Abdul Aziz) and a plan Ex. P.W 6/2 prepared in the present suit, supported the inference that the dry area was joint property and that the slab existed at least from that earlier period.
    • Witness admissions: Amar Singh (P.W.6) admitted the slab was about fifty years old; Devi Chand (P.W.1) admitted long existence; other witnesses (D.W.4, D.W.5, D.W.7, D.W.8) deposed that the slab served as the passage to Garib Manzil and there was no other passage.
  3. On pleadings: the plaintiffs' plaint alleged construction by the defendant in 1964; the plaintiffs' replication claimed ownership of the slab — a position inconsistent with the plaint. The court held the plaintiffs could not be permitted to raise the ownership plea in replication without amending the plaint.
  4. On the central factual question (1964 construction vs. pre-1922 existence): the court found the weight of documentary and oral evidence supported that the slab existed before 1922 and was used exclusively by Garib Manzil's owners; there was no evidence that the slab was constructed by the defendant in 1964.
  5. On the legal question of whether adverse possession can operate in relation to the space/column of air occupied by an overhanging projection/slab, the court examined conflicting authorities:
    • It noted earlier Bombay cases cited by the appellants that seemed to deny acquisition of title to the space above land and treated such occupation as giving, at most, an easement.
    • The court gave weight to the Madras decision in Rathinavelu Mudaliar and to the reasoning in State of Indore and the Allahabad High Court (State of Indore v. Visheshwar Bhattacharya and the All.-Madras line) which held that projection into the space above another's land is trespassable but, if enjoyed for the prescriptive period, gives rise to a prescriptive right — indeed characterising the space above land as part of immovable property capable of adverse possession.
  6. Applying that legal principle to the facts, the court concluded that the owners of Garib Manzil, who had for more than twelve years been in adverse possession of the space occupied by the slab, had acquired title to that space by adverse possession.
  7. On the procedural objection that adverse possession had not been specifically pleaded in the written statement and no specific issue was framed, the court observed:
    • The defendant's written statement had stated exclusive possession of the space above the drain/dry area and that the predecessor constructed a slab in 1922 (allegations that would necessarily raise the question of the legal effect of long possession).
    • Issue No. 3 — whether the slab had been in existence since long, and if so since when and with what effect — directly related to possession and its legal consequence; parties had led evidence thereon.
    • Given these circumstances, the court held that the appellants were not taken by surprise nor prejudiced by the defendant urging adverse possession at argument; therefore permitting the plea was proper.
  8. On the co-owner/ousting point urged by appellants (that a co-owner cannot acquire title against other joint owners without ouster), the court reasoned that the predecessors-in-interest of the defendant had openly and exclusively used the slab for over fifty years, and the plaintiffs (or their predecessors) had knowledge of that enjoyment — accordingly there was effectively an ouster in respect of the specific space occupied by the slab and the possession was adverse to the appellants.

Holding and Implications

Holding: The appeal is dismissed. The concurrent findings of the Courts below are affirmed: the drain and dry area were joint property; the slab existed before 1922 and had been in exclusive possession and use by the owners of Garib Manzil; the owners of Garib Manzil had acquired title to the space occupied by the slab by adverse possession for more than twelve years. The suit for injunction was correctly dismissed by the courts below, and this appeal fails and is dismissed with costs.

Implications

  • Direct effect: The plaintiffs' suit for mandatory and permanent injunctions was dismissed; the defendant (owners of Garib Manzil) retains the prescriptive title to the slab and the space it occupies; the appeal was dismissed with costs.
  • On legal principle: The Court expressly aligns with the Madras and Allahabad line of authority (Rathinavelu Mudaliar and the reasoning in State of Indore v. Visheshwar Bhattacharya) that an overhanging projection into the space above another's land can, by continuous adverse possession for the prescriptive period (twelve years), ripen into a right/title to the space — treating the space above land as property capable of adverse possession. The judgment endorses that approach rather than the contrary Bombay rulings cited by the appellants.
  • No broader or novel legal rule is announced beyond adopting the cited authorities' approach; the decision operates as an affirmation of the application of prescription/adverse possession principles to overhanging projections/slabs in the factual circumstances described.

If any particular document reference or evidentiary item is not mentioned above, it was because the provided opinion text did not supply further explicit detail beyond what is summarized here.

Show full summary ...

    Mehar Chand And Others v. Jagdish Chand Gupta .

    Om Parkash, J.:— 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 Chakravarty. 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 successors-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 added as 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 actions 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 was that the alley and the dry area were joint property of the owners 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 an 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 pucca 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 joint 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 space above the drain and dry area and that his predecessor-in-interest had constructed a slab in 1922, overhanging 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 surprise and no prejudice had been caused to them by the plea of adverse possession. As a result of its findings, the trial Court dismissed the suit.

    4. Aggrieved by the decree of the trial Court, the plaintiffs 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.

    5. 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, therefore, 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 property 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 upto the dry area and the drain.

    6. 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.

    7. 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 constructed by the defendant. The plaintiffs could not be permitted to raise this plea without amending the plaint.

    8. The only question is whether the slab was constructed by the defendant in 1964, as alleged by the plaintiffs, or by the predecessors-in-interest of the defendant in 1922 or even before that. The documents, filed in the suit of Brij Raj 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 admitted the existence of slab since long.

    9. 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.

    10. There is no evidence on record that the slab was constructed by the defendant in 1964.

    11. 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.

    12. 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, AIR 1931 All 1054 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) ILR 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 in 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.”

    13. 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 properly. 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.”

    14. 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.

    15. 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 was 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 plaintiffs. They were exclusively using the slab. Thus, there was open assertion of hostile title to the space by them. The predecessors-in-interest or 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 possession for more than twelve years.

    16. 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.

    17. 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 Courts 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 fails and is dismissed with costs.

    19. Appeal dismissed.

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    Comments

    Mehar Chand And Others v. Jagdish Chand Gupta .
    (May 28, 1970)