Judgment :- 1. These two second appeals arise out of two suits between the same two parties, the plaintiff in one suit being the defendant in the other. The appellant in S. A. 376 of 1958 which arises out of O.S. 695 of 1951, is the plaintiff and the respondent is the defendant. They are owners of adjoining lands, on each of which there is a building. The respondent's building is found by the two courts to be more than twelve years old, with its eaves on one side projecting over the appellant's land on the east all the time. As the projection constituted an obstruction to certain structural alterations to the appellant's building which he was contemplating, he sued for a mandatory injunction to compel the respondent to remove the same, basing his right on an alleged agreement by the respondent so to remove, and also on his title and possession in respect of the portion of the land, which is perpendicularly below the projection. The agreement being found against, the appellant was nonsuited in the court of first instance and his appeal to the Subordinate judge was dismissed on the ground, that the respondent had acquired by adverse possession a right to maintain the roof in its existing condition. The connected second appeal (S.A. 424 of 1958) arises out of a suit by the respondent to declare his title to the strip of land directly below the projecting part of the roof or in the alternative, his right of easement to maintain the roof as it is and for other reliefs; the declaration was refused by the two courts. S.A. 424 of 1958 was pressed only for a direction to issue concerning the location of the beams which the appellant might erect in making the proposed alterations to his building. 2. The main question is in S.A. 376 of 1958, and is whether, the appellant can compel the respondent to remove the projecting part of the roof of the latter's building. 2. The main question is in S.A. 376 of 1958, and is whether, the appellant can compel the respondent to remove the projecting part of the roof of the latter's building. The respondent supported the decree dismissing the appellant's suit only on the ground, that the projection per se constituted trespass and having been made at the time his building was completed and continued for more than twelve years, he has perfected his title to so much of the space occupied by it by adverse possession and in any event, the appellant has lost his right to remove such trespass. It is too true, that the plea of adverse possession or of limitation was not set up in these terms by the respondent. But he" did assert a claim of having acquired a right to project the roof of his building, partly on the strength of his alleged title to the strip of land below it and partly as an easement by prescription. In my view, a distinction exists and must be maintained between "A's right to discharge on B's land the rain water from the eaves of A's house", which in terms of illustration (b) to S.23 of the Indian Easements Act, 1882, is an easement, and A's occupation of a part of the space above B's land by the mere projection of roof, which in essence is in the nature of and constitutes trespass. In the generality of cases, the discharge of rain water from the roof over neighbouring land, is associated with and follows as a consequence of the projection in the proof; but it is possible to conceive of cases of projection, the water being drained away without falling on another's land. In the generality of cases, the discharge of rain water from the roof over neighbouring land, is associated with and follows as a consequence of the projection in the proof; but it is possible to conceive of cases of projection, the water being drained away without falling on another's land. As observed by Joshi in Easements and Licences, 3rd Edition, page 374: "as in every case where an easement of eaves-dropping has matured by a prescriptive use of twenty years, there also exists side-by-side a title (acquired by an adverse user of 12 years) to occupy the space of another owner; the legal nature of the title acquired in the shorter period of time is lost sight of and thus there results a generalisation that an easement right to project one's eaves (or anything else) may be acquired in a twenty years period." The plea of a prescriptive easement in the present case is in reality founded upon occupation of space by the respondent by the projecting roof, unlawful as it has been not being based on permission and in the nature of trespass. It does not therefore seem proper to over-rule the respondent's contention, on the ground of defective pleading. 3. The rule was stated thus, in Corbett v. Hill (L.R. 9 Eq. 671): "whoever has got the solum - whoever has got the site - is the owner of everything up to the sky and down to the centre of the earth." Whether the sky can still be regarded as the limit and whether the rule may not require restatement at the present time need not enter into the present discussion. The rule was applied by a Bench of the Madras High Court in Rathinavelu Mudaliar v. Kolandavelu Pillai (ILR. 29 Madras 511) and was stated in the following words by Sri Lawrence Jenkins, C.J. in Ranchod Shamji v. Abdulabai Mithabhai (ILR. 28 Bom. 428): "The defendant being the owner of the soil is entitled prima facie to all above it, and in our opinion the diminution in his rights by reason of the beams does not extent beyond the protrusion of the beams themselves." In the very early case of Mohanlal Jechand v. Amratlal Bechardas (ILR. 3 Bom. 28 Bom. 428): "The defendant being the owner of the soil is entitled prima facie to all above it, and in our opinion the diminution in his rights by reason of the beams does not extent beyond the protrusion of the beams themselves." In the very early case of Mohanlal Jechand v. Amratlal Bechardas (ILR. 3 Bom. 174) decided by a bench of the Bombay High Court, West J. assimilated the case of a projecting roof, to that "which sometimes arises of possession giving rise to a prescriptive right to an upper chamber of a house, while the ownership of the groundfloor remains, along with its possession, in the hands of the original proprietor", and held, that the plaintiff could not, after twelve years, recover possession of the space occupied by the defendant's projecting roof which is to be regarded as part of the column resting on the area belonging to the plaintiff and extending indefinitely upwards." This view commended itself to the Bench, more than the alternative view that the projection might be regarded as an easement. In Rathinavelu Mudaliar's case, Sankaran Nair, J. on a consideration of some of the cases decided in England and in India, and relying on Mohanlal Jechand v. Amratlal Bechardas reached the conclusion, that though the defendant did not acquire any right to the space either above or below the projection, he acquired a right to the space occupied by the projection and to retain it in its present position, and negatived the plaintiff's claim for its removal. These cases have been decided upon the principle, that the column of space above the land belongs to the owner of the land and forms part of it, and the projection belonging to a neighbour into that column, is an act of wrongful occupation amounting to trespass. Rathinavelu Mudaliar's case was followed by the same Court in Varrey Tulasamma v. Nandula Buchiramiah (AIR. 1949 Mad. 826). A similar view has been held by the Nagpur High Court in Tilokchand Nathumal v. Dundiraj Madhavarao (AIR. 1957 Nag. 2). 4. In State of Indore v. Visheshwar Bhattacharya (AIR. 1934 All. Rathinavelu Mudaliar's case was followed by the same Court in Varrey Tulasamma v. Nandula Buchiramiah (AIR. 1949 Mad. 826). A similar view has been held by the Nagpur High Court in Tilokchand Nathumal v. Dundiraj Madhavarao (AIR. 1957 Nag. 2). 4. In State of Indore v. Visheshwar Bhattacharya (AIR. 1934 All. 1034), a Bench of the Allahabad High Court, after noticing the altered view taken in some of the later cases decided by the Bombay High Court, explained, that according to the earlier view held by it, presumably in the decision rendered by West J. and Jenkins C.J. the space above the land is one of the benefits arising out of the ownership of that land, that it is part of his immovable property and that therefore any act of trespass upon it would be an act of adverse possession. The Court declined to follow the later Bombay cases and held that the space above the land is itself immovable property, on the principle which was stated thus: "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 twelve years." It seems to me, that the observations of Holloway, Acting, C.J. in Sukry Kurdeppa v. Goondakull Nagireddi (6 Mad. High Court Reports 71) though made in a different context are pertinent. The learned judge observed at page 73: "Movability may be defined to be a capacity in a thing of suffering alteration of the relation of place; immovability incapacity for such alteration. High Court Reports 71) though made in a different context are pertinent. The learned judge observed at page 73: "Movability may be defined to be a capacity in a thing of suffering alteration of the relation of place; immovability incapacity for such alteration. If, however, a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable." Taking the idea from Joshi the learned author, I may, say that though the air in the column of space above the land may change frequently, the column itself is fixed in relation to the lend which supports it and that there is no violence in regarding that column as immovable, or as a benefit which arises out of the land, so as to be immovable property within the definition in the General Clauses Act, 1897. In Mahindra Nath Gum v. Surajmal Sajer (45 Cal. Weekly Notes 17) the Calcutta High Court held, that while it is not possible, simply by projecting a cornice over a part of the land of another, to acquire title to that part by adverse possession, yet by doing so "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. 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 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" 5. The earlier Bombay view has been adverted to above. In three of the later cases, Chotalal Hirachand v. Manilal Gagalbhai (ILR. 37 Bom. 491), Dhed Mullia Bhana v. Dhad Sundar Dana (ILR. 38 Bom. The earlier Bombay view has been adverted to above. In three of the later cases, Chotalal Hirachand v. Manilal Gagalbhai (ILR. 37 Bom. 491), Dhed Mullia Bhana v. Dhad Sundar Dana (ILR. 38 Bom. 1) and Kashibhai Kalidas Patel v. Vallabhai Wagibhai Patel (AIR. 1922 Bom. 83) the projection of eaves on the neighbouring land, was considered to be in the nature of an easement. The question was considered in greater detail in Chhaganlal Fulchand v. Hemchand Tapidas (AIR. 1932 Bom. 224) where the view was taken, that the column of air occupied by projecting eaves is not immovable property or any interest therein, nor a benefit to arise out of land, but that resulting as it does, in the discharge of rain water the projection is an easement according to illustration (b) in S.23 of the Indian Easements Act. As I have observed earlier, the right to maintain a projection, say for example, of the beams of a building or of some other kind, not necessarily connected with the right to discharge rain water is well recognised and may be acquired, and it seems to me, that the true basis of this right is to be found in the theory of continued and adverse occupation of space rather than of easement. As often as not, the right to discharge rain water or to some other easement may flow from the right to the projection, but cannot in all cases, necessarily extinguish or obliterate the same or affect its character. In the case just cited, the Court then proceeded to observe, that the theory "of occupation of the column of air by eaves & projecting beams has not been extended to overhanging branches of a tree". This reasoning is completely met by Lemon v. Webb (1894-3 Ch. In the case just cited, the Court then proceeded to observe, that the theory "of occupation of the column of air by eaves & projecting beams has not been extended to overhanging branches of a tree". This reasoning is completely met by Lemon v. Webb (1894-3 Ch. 1) where Lindley, J. observed: "Considering that no title can be acquired to the space occupied by new wood and that new wood not only lengthens but thickens old wood, and that new wood gradually formed over old wood, cannot practically be removed as it grows, and considering the flexibility of the branches and their constant motion, it is plain that the analogy sought to be established between an artificial building or projection hanging over a man's land and a branch of a tree is not sufficiently close to serve any useful purpose" It remains only to refer to the next decision of the Bombay High Court in Dabyabhai Vanmalidas Shah v. Hiralal Umendran Shah (AIR. 1936 Bom. 3), where a learned single judge has drawn a distinction between a projection which is an integral part of the building the removal of which will injure the building and title to which may be acquired by adverse possession for twelve years, and a projection which is not an integral part of the building but is intended for the preservation or the safety of the building and in respect of which a right of easement alone can be claimed. With great respect, the distinction, it seems to me, is not based on sound principle, though it is useful as a partial recognition, as I view it, of the principle that space above land is not immune from the rule of adverse possession. 6. On principle, and on the preponderance of judicial opinion, I am of the view, that the respondent has perfected his right to maintain the projection in its present form and that the appellant is not entitled to an order for its removal. 7. The first court has given a direction in the judgment in O.S. 695 of 1951, that the beams of the second floor of the appellant's building shall not touch the eastern wall of the building of the respondent. This direction was overlooked in preparing the decree. The only point urged in S.A. 424 of 1958 was that this direction may be ordered to be incorporated in the decree. This direction was overlooked in preparing the decree. The only point urged in S.A. 424 of 1958 was that this direction may be ordered to be incorporated in the decree. No exception was taken by the appellant to this direction in the judgment and accordingly I order, that the decree in that suit be amended, by incorporating this direction in it. Second Appeal 424 of 1958 is disposed of as above. Second Appeal 376 of 1958 is dismissed with costs.