JUDGMENT Biswas, J. - This appeal arises out of a suit for declaration of title, recovery of possession and a permanent injunction. It is a question between the parties as to whether the title claimed was full proprietary title over the disputed land either as forming part of the Plaintiff's admitted tenement or by virtue of adverse possession, or it was merely a right of easement to discharge water over the land from the roof of the Plaintiff's house, acquired by statutory prescription or through the presumption of a lost grant. The land in suit is a narrow strip, about 35 ft. long and 6 inches wide, running along-side the western boundary of a pucca one-storied structure belonging to the Plaintiff. The learned Munsif gave the Plaintiff a decree. He found that the Plaintiff had acquired title by adverse possession, and also an easement right to discharge water over the land. As regards the easement, he held that the case made was not one based on prescription, but on the presumption of a lost grant. On appeal, the learned Subordinate Judge dismissed the suit. Both Courts held that the Plaintiff had failed to prove that the disputed land formed part of his holding. On the question of adverse possession, the learned Subordinate Judge came to the conclusion that this had not been established, and as regards the right of easement, he was of opinion that this had not been pleaded, that the case of easement by prescription had been definitely abandoned in the trial Court, and that in any case, the length of user alleged or proved by the Plaintiff was not sufficient to give rise to an inference of lost grant. All the findings and conclusions of the learned Subordinate Judge have been strenuously canvassed before us in second appeal. 2. It is clear that the appeal must be decided on the basis that the disputed land is not included in the Plaintiff's holding as a part thereof. The Plaintiff must succeed, if at all, either on his case of adverse possession or on the strength of a right of easement. 3. 2. It is clear that the appeal must be decided on the basis that the disputed land is not included in the Plaintiff's holding as a part thereof. The Plaintiff must succeed, if at all, either on his case of adverse possession or on the strength of a right of easement. 3. His case under the first head he puts on this basis: he says that there is a cornice projecting from the roof of his house over the disputed land for a width of 6 inches, which has been in existence there for over 25 years, and that by virtue of this fact as also of the fact that he has been actually discharging water from his roof on to the land, he has been in adverse possession in such a manner and for such a length of time as to have acquired title to the land. The learned Subordinate Judge has found himself unable to give effect to this contention. 4. As regards the cornice, he holds that the projection cannot in law amount to such occupation of the land below as may be said to constitute adverse possession, and in my opinion, in so holding, he has taken a view which is fully supported by the authorities, among which it is enough to call attention to Chhaganlal Fulchand v. Hemchand Tapidas 34 B.L.R. 395 (1931) and the cases referred to therein. Tested with reference to first principles, the soundness of this view seems indeed to be unassailable. In order to constitute adverse possession, there must be effective exclusion of the real owner from the property, and as a rule, the extent of such exclusion is the measure of the right which is acquired by adverse possession. Now, by projecting a cornice over a neighbour's land for the statutory period and under conditions which would permit a title to grow by prescription, it may be thus possible to acquire a right by adverse possession, but it will be merely a right to maintain the projection. The possession will in fact be merely of the space covered by the cornice, and the prescriptive right arising in consequence will, therefore, be limited to this space only. The possession will in fact be merely of the space covered by the cornice, and the prescriptive right arising in consequence will, therefore, be limited to this space only. So far as the land beneath, or so far even as the column of air below the cornice or the super-incumbent air above it is concerned, there will be no occupation, and consequently no ouster of the real owner. Ouster from the cornice-space will not necessarily operate as ouster from anything beyond it, either above or below. Thus it has been held that the acquisition of a right to project beams cannot extend beyond the protrusion of the beams themselves. Ranchod Shamji v. Abdulabhai Mithabhai ILR 28 Bom, 428 (1904). On the facts alleged by the Plaintiff in the present case, therefore, the utmost that he could claim to have established would be a right to keep his cornice projecting in the same way as before without any obstruction by the Defendants, but that is not the case which he makes in this suit, and the Court is not called upon to consider whether or not such a case, if made, could be supported. The Plaintiff relies on the existence of the cornice not for the purpose of maintaining a right to preserve it there in its old position, but for making out a title by adverse possession to the strip of land below, and in this attempt, the learned Subordinate Judge is right in saying, the Plaintiff must fail. 5. As regards the other ground on which the Plaintiff rests his case of adverse possession, namely,; that he has in fact been discharging water from his roof over this land, the Court below, in my opinion, is also right in holding that this is not sufficient: at best it may give rise to a right of easement, but cannot create title by adverse possession, for, such enjoyment of the land would be quite consistent with recognition of the real owner's title to the land. Adverse possession, as is well-established, pre-supposes an assertive enjoyment of a right of property to the exclusion or in denial of the title of the real owner: in other words, the acts of possession or enjoyment by or on behalf of the adverse possessor must be of an unequivocal character referable only to a claim of right. Adverse possession, as is well-established, pre-supposes an assertive enjoyment of a right of property to the exclusion or in denial of the title of the real owner: in other words, the acts of possession or enjoyment by or on behalf of the adverse possessor must be of an unequivocal character referable only to a claim of right. But this necessary element could hardly be predicated of the Plaintiff's enjoyment of the disputed land consisting in mere discharge of water on it from his roof. 6. The Plaintiff's case of adverse possession must accordingly fail. 7. There remains to consider whether he may claim to succeed on the other ground, namely, that of acquisition of an easement right. The learned Subordinate Judge, as I have said, holds that this case was not specifically pleaded by the Plaintiff, and that it is not, therefore, open to him to set Up such a case. The same view has also been strongly urged before me by the learned Advocate on behalf of the Defendant. It appears, however, that an express issue was raised in this case on the question of easement, viz., issue No. 8 which was in these terms: Has the Plaintiff got any right of easement to drain out roof-water on the land in suit ? 8. After the issue was framed, the Defendant filed a petition before the learned Munsif, objecting to it on the ground that it was not justified by the pleading. The matter was heard, and on the 1st of March, 1937, the following order was recorded: Heard pleaders. It will appear from the plaint that the Plaintiff has made out the case of easement right as well. Issue No. 3 is important and it arises. The issue cannot be expunged. In view of this order, it is obvious that the Defendant cannot raise any question of prejudice. It would probably have been better if in view of the Defendant's objection, the Plaintiff had got the plaint amended so as to put the matter beyond doubt; but though this was not done, I do not think it is open to the Defendant to complain that an altogether new case was sprung upon him for the first time at the trial. 9. I have read the plaint myself, and it is true that it does not make a clear-cut case of easement. 9. I have read the plaint myself, and it is true that it does not make a clear-cut case of easement. All the same, it seems to me to contain a sufficient recital of facts which may be supposed to lay, the foundation for such a claim. I fully accept Mr. Rama Prasad Mookerjee's contention that a right of easement must be specifically pleaded, but as we know, pleadings are often so loosely expressed in the Mofussil that it might be doing an injustice to litigants in many eases to construe them much too strictly. I should be disposed to lean towards a construction which would permit rather than shut out an adjudication of the real rights of parties, when from the facts set out, such adjudication may be held to be Justified, though not asked for in specific terms or in strict form. 10. In the present suit, the case which the Plaintiff puts in the forefront of his plaint no doubt is that of title by adverse possession; at the same time, there is the prayer for a permanent injunction which seeks in terms to restrain the Defendant from obstructing the Plaintiff's right to discharge water on the disputed land. There is certainly no specific prayer for a declaration of this right, but I think it may be regarded as implied or involved in the claim to a permanent injunction. Paragraph 8 of the plaint also contains an express averment of this right, though neither here nor in the prayer clause is it referred to or described as an easement. It may no doubt be contended that the right is set up as ancillary to the right of property claimed in the land, but the language used is riot so unambiguous or unequivocal as to lead necessarily to this construction rather than to any other. In this view of the matter, I am not prepared to hold that the case of easement should be altogether ruled out as not justified by the averments in the plaint. 11. The fact remains, however, that notwithstanding issue No. 3, and the order overruling the Defendant's objection to that issue, the question of easement was not properly tried, and it is difficult to hold that this was not largely due to the imperfect nature of the pleading. 11. The fact remains, however, that notwithstanding issue No. 3, and the order overruling the Defendant's objection to that issue, the question of easement was not properly tried, and it is difficult to hold that this was not largely due to the imperfect nature of the pleading. Assuming that an easement was pleaded in substance, if not in form, the question would still arise as to what particular case the Plaintiff made regarding the mode of acquisition of such easement: was it an easement by statutory prescription by operation of sec. 26 of the Indian Limitation Act, or was it an easement arising from the presumption of a lost grant? In the trial Court, the Plaintiff's pleader said that the case made was one of lost grant, and not of prescription under the statute, and the same position was virtually maintained on his behalf in this Court. It seems to me, however, that in so far as it is possible to spell out a case of easement from the plaint as it stands, the recital of facts therein must be taken to be sufficiently wide to include either mode of acquiring the right. After all, in pleading an easement on the basis of a lost grant, the essential fact to aver is user or enjoyment for a sufficient length of time which might give rise to the presumption of such a grant. Ordinarily, such length of user will exceed the statutory period of 20 years required for acquiring an easement by prescription under sec. 26 of the Indian Limitation Act. To plead an easement on the presumption of a lost grant may from that point of view be said to involve a pleading of easement by prescription, assuming, of course, an averment of the other elements necessary for establishing such a right. In my view, the Plaintiff here did assert enjoyment of the right for a sufficient-length of time from which it might be possible to infer a lost grant, and that being so, I think it should be open to him to prove the acquisition of this right in whichever way he could. According to the learned Advocate for the Plaintiff, his client had already placed on record the necessary evidence in support of his case of easement on either basis, and I accept that statement for the purpose of the remand which I propose to direct. 12. According to the learned Advocate for the Plaintiff, his client had already placed on record the necessary evidence in support of his case of easement on either basis, and I accept that statement for the purpose of the remand which I propose to direct. 12. In answer to the Plaintiff's case of easement, Mr. Rama Prasad Mookerjee raised a further point, which, if substantiated, would no doubt render a remand unnecessary. It was pointed out that the learned Subordinate Judge had held that even if the Plaintiff be supposed to have acquired an easement, it had been lost by reason of the fact that the old roof in respect of which the right had accrued was replaced by a new roof, and that the same right could not continue in respect of the new roof, because the effect of the reconstruction was to add to the burden of the servitude. Mr. Mookerjee laid considerable stress on the passage in the judgment of the learned Subordinate Judge where he referred to this additional burden due to the change in the roof. He contended that this was a finding of fact which was conclusive in second appeal, and in support of that view, relied upon the case of Suresh Chandra Biswas v. Jogendra Nath Sen 21 O.W.N. 890 (1920). As to whether there was an additional, burden or not due to the reconstruction of the roof, this was undoubtedly a question of fact, and if the learned Subordinate Judge had come to a proper finding on the question, I should certainly have been bound by it. As I read his judgment, however, I do not think that he meant to come to any definite finding. In any case, it is difficult to accept his statement as a proper or legal finding of fact. For one thing, there is no proper discussion of the evidence bearing on the point. If the evidence which he refers to in a subsequent part of his judgment is Supposed to deal with this matter, it is not and cannot be denied that there was a misreading of this evidence by the learned Judge at least in part, and in my opinion, a material part. This is in fact made clear in an order which was passed by the lower Appellate Court on an application for review of the judgment. 13. This is in fact made clear in an order which was passed by the lower Appellate Court on an application for review of the judgment. 13. All that is sound, and it is really an admitted fact that the old roof was replaced by a new roof at a higher level, but whether this would cause an increase in the burden of any easement that might have existed is a question that would have to be decided on the evidence. In my opinion, that has not been done, and I am not -prepared, therefore, to accept the so-called finding of the learned Subordinate Judge as an effective bar to a consideration of the Plaintiff's case of easement. 14. On the record as it stands, the position may be thus summed up as follows :-- The Plaintiff fails to show that the disputed strip of land is a part of his holding. The Plaintiff equally fails to Show that he has acquired title to the land by adverse possession, either by reason of the over-hanging cornice or by reason of the fact of discharge of water over this land. The Plaintiff, however, may be said to have laid the foundation for a case in the alternative, though not in so many words, that he has acquired a right to discharge water over the land as an easement. The recitals in the plaint are sufficient to include a case of easement based on a presumption of lost grant or of easement acquired under the statute. This part of his case has not been properly dealt with by the learned Subordinate Judge. So far as the trial Court is concerned, although that Court took the view that the case of easement by-prescription had been abandoned, it still held in favour of the Plaintiff as to his case of lost grant. In my view, however, the facts necessary to establish a case of lost grant may in this case be enough to support the alternative mode of acquisition of the right. 15. In these circumstances, it is, in my opinion, necessary to direct a remand of the appeal to the lower Appellate Court for a proper hearing of the case of easement. 15. In these circumstances, it is, in my opinion, necessary to direct a remand of the appeal to the lower Appellate Court for a proper hearing of the case of easement. As the Plaintiff claims to have already placed all his evidence on this part of his case before the Court, he will not be entitled to adduce any further evidence, but the Defendant will be at liberty to adduce rebutting evidence which will include the right to re-call the Plaintiff's witnesses for further cross-examination on the question of the existence of the alleged easement. The result is that this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside, and the case remanded to the lower Appellate Court for re-hearing of the appeal in accordance with the directions given above. As the remand has been occasioned largely by reason of the defective pleading of the Plaintiff, the Plaintiff must bear the costs of this Court and of the last hearing before the lower Appellate Court in any event. The costs of the trial Court, and of the re-hearing on remand will abide the result.