Hanifa Et Al V. Ismail Et Al

1914 Present: Pereira J. and Ennis J.

HANIFA et al. v. ISMAIL et al.

452-D. C. Colombo, 35, 196.

Servitude-Roof projecting over, another's land.

A right to have a portion of the toot of one's house projecting over or overhanging the adjacent land may be acquired by prescription; but where a portion of roof in respect of which a right so acquired is removed by its owner, he has no right in lieu thereof to claim to be allowed to let another portion of his roof at a different place and of different dimensions overhang the adjacent land.

THE facts are set out in the following judgment of the District Judge: -

The plaintiffs are the owners of premises bearing assessment No. 30, Prince Street. Pettah; the defendants own the adjoining premises on the west bearing assessment No. 29. -

The plaintiffs allege that the defendants in April, 1912, pulled down their house and erected a large upstair building on the site of the old house, and that the new wall built by defendants is on the site of the old boundary wall which stood on promises No. 30, and that the defendants have encroached on premises No. 80 to the extent of 76. 47 square feet.

The plaintiffs further allege that the eaves of defendants' new building and certain brick mouldings project over and overhang their premises, that the new building completely shuts out the light and air from premises No. 30, and that in consequence of the building operations considerable damage has been done to the walls of premises No. 30.

The plaintiffs estimate the value of the encroachment at Rs. 500, and the damage at Rs. 4, 500.

The plaintiffs pray for a decree-

(1) Directing the defendants to remove the encroachment and the eaves and projections overhanging premises No. 30.

(2) Declaring that premises No. 80 ore free from the burden of any servitude claimed or asserted by the defendants in respect of the windows overlooking premises No. 29.

(3) Directing the defendants to close the windows.

(4) Directing the defendants to pay plaintiffs Rs. 4, 500 as damages and further damages at Rs. 50 a month.

(5) For costs.

The defendants claim to be the owners of the site of the boundary wall upon deed No. 95 of November 28, 1897, and by prescription, and to have acquired a title by prescription to a servitude in respect of the projecting eaves and brick mouldings referred to in paragraph 5 of the plaint.

The parties went to trial on the following issues, viz.: -

(1) Was the wall dividing plaintiffs' from defendants' building standing on plaintiffs' land or on defendants' land?

(2) If not, was it a common wall ?

(3) If the wall was standing on plaintiffs" land, have defendants acquired a title by prescription to the wall and the. land on which it stood ?

(4) Are the plaintiffs entitled to have the window overlooking plaintiffs' building in defendants' flew building closed ?

(5) Do the eaves and brick mouldings of defendants' building project over the plaintiffs' land ?

(6) Have defendants acquired a title by prescription to have the eaves and brick mouldings projecting over plaintiffs' land ?

(7) What damage, if any, are plaintiffs entitled to owing to injury to plaintiffs' building by reason of want of proper care, if any, in carrying out the adjoining building operations, and by reason of plaintiffs not being able to let the building from April, 1912, if that were so ?

(8) In any case, can plaintiffs claim to have the said wall removed ?

It is clear, therefore, from the evidence of these two witnesses that the land on which the dividing wall stands belongs to the defendants, and I find accordingly on the 1st issue.

I answer the 2nd issue in the negative. I need not adjudicate on the 3rd issue and 8th issue.

As regards the 5th issue, defendants counsel admitted that the eaves and brick moulding projected over plaintiffs' land, and I answer the issue in the affirmative.

The defendants' claim of a prescriptive right to have the caves

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