1. The claim of the Plaintiffs to an easement of light and air for the buildings on their own land towards the north must also fail on account of the absence of sufficient evidence in support of it. We have, however, no doubt that the windows and openings on the north as well as west of the godowns of the Plaintiffs have existed practically in the same condition for more than twenty years. Anderson Cartland and Lees are definite in their statements and the counter-evidence is utterly worthless. The lower Court, in coming to an opposite conclusion, relied on Ex. 2 a plan of the premises prepared at the instance of the Calcutta Fire Insurance Company in the year 18S6. But the map clearly indicator the existence of these openings. The Plaintiffs have enjoyed the access and use of light and air through them for a much longer period than twenty years and peaceably, uninterruptedly. But to constitute an actionable obstruction of ancient lights and unrestricted flow of air, it is not enough that the light is less than before and the Plaintiffs enjoy less free flow of air. The effect of the obstruction as regards the godown on the north on account of the Defendant''s building on his land is not sufficiently clear on the evidence. Cartland says that the wall that has been built by the Defendant has materially affected the light and air of the Plaintiffs'' godown on the west and that if it is built 25 ft. high, the godowns would be totally dark. But he is not explicit as regards the openings on the north which are nine in number. The Defendant says that he has no intention of raising the wall beyond a height of 20 ft.
2. It is clear that the raising of the height of the wall on the north will not materially affect the godowns to the immediate south of it. In fact, the Plaintiffs'' complaint as regards the wall on the north as obstruction to light and air has been very faintly pressed. The space between the godown of the Plaintiffs and the disputed wall is obviously sufficient for access of light and air.
3. The space between the western godown of the Plaintiffs and the newly raised wall of the Defendant is, however, very small and there are reasonable grounds of apprehension of a sensible diminution of light. The breadth of the drain is only two feet. The intervening space between the godown of the Plaintiffs and the wall raised of the Defendant is too narrow to admit of sufficient light into the godown. Cartland is distinctly positive on the point. The erection of the wall has already caused and will, most likely, further cause such substantial privation of light and impede the flow of air to such an extent as would prevent the Plaintiffs from carrying their jute-business as beneficially as before.
4. In Colls v. Home and Colonial Stores, Limited (1904) A. C. 179, the conclusion arrived at, after an elaborate examination of authorities and principles, is that any appreciable diminution of light which has been enjoyed (that is to say, has existed uninterruptedly for twenty years) does not constitute a right of action and does not give a right to the proprietor of a tenement that has this enjoyment to prevent his neighbour building on his own land. "The test of the right is whether the obstruction complained of is a nuisance and the value of the test make the amount of right acquired depend upon surroundings and circumstances of light coming from other sources as well as the question of the proximity of the premises complained of."
5. The evidence on the record is not; sufficient to enable us to say that the action of the Defendant amounts to a nuisance, such as to entitle the Plaintiffs to a decree for a mandatory injunction BO far as the godown on the north is concerned. But the case is different as regards the western godown which receives light by the two apertures on the west. The Plaintiffs have a real cause of complaint as regards the latter godown and the nuisance caused by the Defendant should be abated.
6. We see no reason for interfering with the decision under appeal except as regards the claim of the Plaintiffs to an easement of access of light and air through the two openings on the west.
7. We accordingly modify the decree of the lower Court by inserting a direction for an induction as regards the wall erected by the Defendant on the west. The rest of the decree shall stand. Having regard to the modification we have made in the decree of the lower Court, we direct that the Appellants should bear their own costs and pay to the Respondent three-fourths of the costs incurred by him.
