A.V. Kuppuswamy Iyer and Others Vs S.K. Subramanian and Others

Raju, J.@mdashThis Second Appeal memo of cross objection coming on for hearing on this day, the Court delivered the following judgment:

The defendant in O.S. No. 1238 of 1979 on the file of the District Munsif, Madurai Town, who succeeded before the learned Trial Judge, but lost before the first appellate Court, has filed the above second appeal.

2. During the pendency of the appeal, the sole appellant died and in his place, appellants 2 to 8, his legal representatives have been brought on record to prosecute the appeal further.

3. The suit O.S. No. 1238 of 1979 was filed by respondents 1 to 3 for a declaration that the plaintiffs have acquired easementary right of light and air, through the windows - W1, W3 by prescription and consequently, for a mandatory injunction restraining the defendant and his men from in any way interfering with the enjoyment of the easementary right of light and air through the said widows by putting up any wall or building or construction and thereby preventing the free flow of light and air.

4. The case of the plaintiffs before the trial Court was that the plaintiffs are the owners of door No. 47, Lakshmipuram Second Street and the defendant is the owner of door No. 46, Lakshmipuram Second Street. On the plaintiffs'' house, there are windows W1 to W2, with zinc sheets over it, as shown in the rough sketch filed along with the plaint and that the said three windows were said to be in existence from time immemorial and therefore, the plaintiffs have acquired the easementary right of light and air by prescription. The house of the defendant which is on the eastern side to the plaintiff''s house, is a tiled structure and the defendant has no western wall to his building and the three windows W1 to W3 are situated in a wall in the plaintiffs'' house and except them, there are no other sources of light and air for the plaintiffs'' house and if the three windows are blocked, light and air does not pass through for the plaintiffs'' house and the plaintiffs'' house will become unfit for human habitation. On the allegation that the defendant has been threatening to put up a wall on the western side of his property, i.e., near the eastern wall of the plaintiffs'' house and stocked bricks, cement and stones, to raise the wall, the plaintiffs have filed the suit for the reliefs noticed supra.

5. The defendant on entering appearance, filed a written statement, contending that he has got his western wall in half of the portion of this building and in the rest of the portion stone pillars are planted, touching the eastern wall of the plaintiffs'' house and supporting his roofing on that. The plaintiffs have other source of light and air to their hall, apart from W1 and W2 windows and the Commissioner has also found that there are six other windows other than W1 and W2. Further, there is a doorway adjoining the room and light and air coming from MUTRAM are sufficient for plaintiffs'' comfortable enjoyment of the room. The plantiffs were said to be not getting light and air through the windows W1 and W2 since they were permanently closed and zinc sheets were put up with screws fixed and the said two windows had never been used by the plaintiffs. They were said to have been closed permanently by the plaintiffs and their predecessors in interest and consequently the defendant is entitled to put up construction in his eastern wall in his own space will the end of the eastern wall of the plaintiffs. The western wall that may be put up by the defendant, even if it blocked W1 and W2 windows that will not result in any hardship or loss of air and light, as light and air pass through other openings and other widows of the plaintiffs'' house and the contention to the contra that the hall will become unfit for human habitation, is false. The further allegation of the plaintiffs that light and air passing through W1 and W2 windows for the past 50 years, was denied as false and the plaintiffs, according to the defendant, cannot claim to have prescribed any easementary right of light and air. While the existence of the wall for the past 35 years was admitted, it was also contended that through at, the windows W1 and W2 were all permanently closed by blocking with zinc sheets and screws. The venders of the plaintiffs were said to have executed a VARTHAMAN letter long prior to the purchase by the plaintiffs, agreeing to remove the sun-shades when the defendant raises his western wall. According to the defendants, that windows W1 and W2 are not accessable to the plaintiffs, as they are located at a height of 13 1/2 feet above the ground level and are kept permanently closed by fitting with tin sheets and screws. It was also claimed that a few days prior to the suit only, the plaintiffs removed the tin-sheets and attempted to open the suit windows in the absence of the defendant and the plaintiffs have also trespassed into the defendant''s property by putting up bachoo SARAMS over the defendants tiled roofing arid caused heavy damage to the defendant''s building, tiled and rafters.

6. The plaintiffs filed a reply statement reiterating the stand earlier taken, contending that the VARDHAMANA Letter, if any, will not bind the plaintiffs.

7. On the above claims and counter claims, the suit came to be tried. On both sides, oral and documentary evidence came to be adduced. A Commissioner was appointed and his two plans and two reports were marked as C1 to C4, After considering the claims of the respective parties, in the light of the materials placed on record and the relevant decisions relating to the rights of the nature in question, the learned trial Judge, by his judgment and decree dated 12-10-1981, dismissed the suit holding that the plaintiffs have not acquired the easementary right of light and air through the suit windows and it was substantiated sufficiently on evidence that the suit windows were kept permanently closed and the plaintiffs were not getting light and air through the windows W1 and W2. The learned trial Judge was also of the view that the house of the plaintiffs and that of the defendant are situated in a very important locality in Madurai and persons cannot afford to lose even a single inch of land and particularly having regard to the fact that the light received by the plaintiffs from other sources would be sufficient even if windows W1 and W2 are closed and the plaintiffs will not sustain any loss due to the denial of the right of light and air through W1 and W2 windows. Aggrieved, the plaintiffs pursued the matter on appeal before the District Court in A.S. No. 2 of 1982 and the said appeal was transferred and entertained by the principal Subordinate Judge, Madurai, as A.S. 2/82 and came to be disposed of as such. The learned First Appellate Judge, chose to differ from the findings arrived at by the learned trial Judge and the Appellate Judge held that the plaintiffs have proved their case for the grant of injunction, as prayed for as regards light. This was on the basis that the plaintiffs have acquired the easementary right to get light, as claimed by them. Consequently, the learned first appellate Judge, while allowing the appeal by judgment and decree dated 25-6-1982, decreed as prayed for so far as the claim for right is concerned. Hence, the above Second Appeal. The respondents herein have filed the cross objections in respect of the claim disallowed for the fight of air.

8. Mr. T. Srinivasa Raghavan, learned Counsel appearing for the appellants, while elaborating the substantial questions of law, contended that in a suit relating to easementary right of light and air, the only amount of light and air for dwelling in a house, which can be claimed by prescription is of such amount of air and light necessary for the convenient and comfortable habitation of the house, and where the easement disturbed is air and light through the windows, the alleged damage shall not be considered to be substantial within the meaning of the Easements Act, in the absence of proof of material diminution in the value of dominant heritage or interference with the physical comforts of the plaintiffs. It was also contended that, the suit for injunction is not maintainable at all, in the absence of a plea and proof of substantial damage.

9. Per contra, learned Counsel for the respondents, strenuously contended, by invting my attention to the findings of the first appellate Court, as also to some of the documents and oral evidence, including the reports and plans of the Commissioner, to contend that though reversing, the learned First Appellate Judge is well merited in his finding recorded contrast to the finding of the learned trial Judge and that therefore, there is no justification or merit for interference, in the second appeal. Argued the learned Counsel further that the claims of parties depend mainly appreciation of evidences and no substantial question of law was involved, to warrant any serious consideration of the appeal.

10. I have carefully considered the submissions of the learned Counsel appearing on either side. In Chapsibhai Dhanjibhai Danad Vs. Purushottam, , the Apex Court has observed that the owner of any interest in the dominant heritage or the occupier of such heritage may institute a, suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff. Under Explanation II read with Explanation I to Section 15 of the Easements Act, where the disturbance pertains to the right of free passage of light passing through the openings to the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage. In V.N. Chandravadivelu Chettiar Vs. V. Varadappa Chetty, a Division Bench of this Court, speaking through Kailasam, J. as the learned Judge than was, observed that the easement acquired by accident lights is not measured by the amount of light enjoyed during the period of prescription and there is no infringement unless that which is done amounts to a nuisance. A person does not obtain by his easement a right to all the light he has enjoyed; he obtains a right to so much of it as well suffice for the ordinary purpose of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings. The actual causing of substantial damage was held to be necessary before a suit could be maintained. It was also emphasized that though it is not necessary for the plaintiff to prove that such interference is injuries to the life, but it would suffice, if physical comforts of the plaintiff were materially interfered with and so far as the right to the free passage of air is concerned, only if the plaintiff''s physical comforts are interfered with. It was further held therein that every infringement of right, which does result in substantial damage, would not entitled the plaintiff to a mandatory injunction in his favour. Courts were cautioned while dealing with the grant of a discretionary relief like the mandatory injunction, to consider the balance of convenience. The question would be whether the injury inflicted was so injuries that only a mandatory injunction can remove the mischief and not even the compensatory reliefs of damages. In National India Textiles, Karur v. K.N. Natesan 1992 (2) LW 380 a learned single Judge of this Court, after considering the case law on the subject, has held that unless there was likelihood of any deprivation in a substantial way to the free flow of light and air through the windows in question, so as to amount to a nuisance, even assuming for argument''s sake that the windows in question were in existence for well ever the statutory period of 20 years and more, the plaintiffs cannot be favoured with an order of injunction. In Suresh Chand Vs. Hindu Mal and Others, relied upon for the respondents, the question was, as to the right of way envisaged u/s 15 of the Easements Act, 1882, and it was observed therein by a learned single Judge of the Himachal Pradesh High Court, that the plaintiff, who was found continuously using the path in dispute without any objection for more than 20 years, becomes entitled to raise a presumption that the user was as of right and the plaintiffs acquired easementary right of way by way of prescription. There can be no comparison of the nature of right under consideration in the case on hand with the right of pathway, which was the subject matter of consideration in the above cited decision. Even otherwise, I am of the view that having regard to the nature of the provisions contained in Section 15 of the Easements Act and the fact that the judgment was rendered on the scope and purport of Section 15 of the Act, it can be of no assistance to the case on hand. Strong reliance has also been placed by the learned Counsel for the appellants on the decision of Andhra Pradesh High Court reported in Yadavalli Thimmaraju v. Ramachandran 1959 (1) An WR 78 (sic) and the statement of law as analysed in the Book on Easements and Licences by B.B. Katiyar 9th Edition pages 603 and 604, which is to the same extent, as laid down by the Division Bench of this Court noticed earlier. So far as the acquisition by prescription of the right of light, or air for any building through windows in one''s own wall facing another man''s land, though the other man cannot close the door or window, as such, his right to construct his own wall in his own land, may have an impact of light and air, which actually the owner of the building was receiving, The same cannot be considered to constitute an infringement warranting the granting of injunction. The nature of enjoyment claimed by the plaintiffs in this case cannot be said to constitute sufficient basis for acquisition of the right of easement of air and light. The extent of right to the passage of light or air through a certain window or other opening, is said to be only of that quantity of light of air, which has been accustomed to enter and he does not obtain by his easement right, the light and air, which he has enjoyed. In Anguri and Others Vs. Jiwan Dass and Another, , it was observed that if a party open any new windows, the other parties are fully entitled to block the same by raising the height of their wall and the first party is not entitled to break or damage the said wall or any portion thereof so as to remove the obstruction to their new windows. Even in a case, where a person has acquired a right of easement to light and air, an action for damages or injunction was held to lie only on complaint of material injury; the plaintiff coming to Court seeking an injunction, must establish a substantial injury or deprivation of his right sufficient to render the use and occupation of his house inconvenient and uncomfortable according to the ordinary requirements of mankind. It was also held to be hot enough to allege or prove that there had been a reduction in the curtailment of light or air in the physical sense by the act complained of an on the other hand, the curtailment of the right must be proved to be so substantial as to render comfortable living or use of the residence, of course, judged by ordinary notions, impossible.

11. With the above statement of law, on a comparitive consideration of Sections 15, 28, 33, and 35 of the Easements Act, it becomes necessary to consider on the facts and circumstances of the case, whether any infringement has been made out which would require the Courts to protect the same by the grant of injunction, as sought for by the plaintiffs. The evidence on record would go to show that the two windows W1 and W2 were permanently closed by zinc sheets with screws fixed and the Commissioner''s reports as well as plans also to some extent substantiate the same. As a matter of fact, even the first Appellate Court which partly allowed in favour of the respondents/plaintiffs the suit claim has accepted this factual position and it is only on that account, taking into account the use of shutters made of glass in one of the windows, the right to light above was held to have been acquired as a matter of right. That apart, there are ample materials on record to show in the form of plans of the Commissioner that there is scope for the plaintiffs getting the required quantity of light for the members of their family through not the open MUTRAM and six others windows located on the other side of the plaintiffs'' own property and that it is not by windows W1 and W2 alone that the plaintiffs have been getting all the light and air they require. The learned first Appellate Judge, in my view, has miserably failed to keep into account this vital aspect of the matter and the indisputable fact that the windows W1 and W2 are situated at a height of 13 1/2 feet from the ground level and the relevant principals of law governing a claim of the nature and on the other hand, has misdirected himself in coming to the conclusion that the plaintiffs are entitled to the relief in so far as the right of light is concerned. The plaintiffs/respondents have filed a memorandum of Cross Objections invoking Order XII, Rule 22, CPC in respect of the disallowed portion of the right relating to air. The concurrent findings of the Courts below denying the claim of right to air was once again based on the indisputable fact that W1 and W2, windows, which alone are on the side of the defendant''s property, were closed permanently with zinc sheets and screws fixed and even the shutter portion in one of the windows has been fixed with glass with no possibility of having received any air through such window, and consequently there was no such diminution of air as to warrant the grant of injunction appears to be well merited and does not call for any interference in, the second appeal.

12. Consequently, the second appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and that of the trial Court shall stand restored. Tie Cross Objections shall stand dismissed. No costs.