Ebrahimji Gulamali vs Badrudin Tayabali

Chhatpar, J.—This second appeal arises out of the following facts : The applt-pitf. is the owner of a house in Mahuva. To the west of his house is situated the house of the debt. Between the two houses is a small strip of land about 6 feet in length & 2� feet wide which is a part of the pltf''s property In the Western wall of the pltf''s house overlooking this strip & also the property of the deft, across are a door & a small window in a room on the ground floor & there are two windows & a small window in a room on the first floor. These apertures alone form the subject-matter for consideration in the present appeal. It was alleged by the pltf that the deft had constructed on his property facing the Western wall of the pltf''s house a wooden compartment with a roof of sheets & that by this construction the deft, had obstructed the light & air entering through the door & windows in the Western wail of the pltf''d house. The pltf. also complained that the deft, had constructed two pillars to support the wooden compartment in such a way that the pillars entered the wall of the pltf''s building & further the deft, bad constructed on his land a cesspool for collection & passage of dirty water & this cess pool was so near the wall, of the pltf s building that the latter was damaged thereby. The pltf. consequently filed a suit claiming a right of easement of light & air in respect of the door & windows in the Western wall of his house & prayed for an injunction restraining the deft, from obstructing the passage of light & air. He also prayed for removal of the pillars which were alleged to trespass into the wall of the pltf''s building & also for the removal of the cesspool so that no water could percolate into the wall of the pltf''s. building. This was in substance the case of the pltf. The trial Ct. dismissed the suit with costs holding that although the pltf. had established the right of easement, there was no substantial damage within the meaning of Sections 33 & 36, Easements Act, the interference with the passage of light & air being so small as not to affect the utility of the pltf''s house. As regards the prayer for removal of the pillars & the cesspool, the trial Ct. held against the pltf. on facts that the same did not constitute a trespass or give any cause of injury to the pltf. The pltf filed an appeal against this decision. The lower appellate Ct. agreed with the findings of the trial Ct. & dismissed the appeal with costs. Against this decree, the pltf. has filed the present appeal.

Mr. A.R. Baxi, the learned Advocate for the applt. has not challenged the decision so fat as the pillars & the cesspool are concerned & the only question in the present appeal to be considered is that relating to the easement of light & air in respect of the door & other apertures in the Western Wall of the pltf''s building. The learned Advocate has raised the following five points: (1) The criterion of judgment with which the lower Cts. have judged the case is erroneous. (2) The lower Cts. have taken into consideration other sources of light & air which should not have been taken into consideration in arriving at the conclusion whether there was substantial deprivation of light & air coming through the apertures in suit. (8) The lower Cts. have not considered the effect of Expln. 1 to Section 33, Easements Act. (4) In any case since the right; of easement was recognised, damages should have been awarded even though nominal. (5) Both the Cts. have erred in awarding costs to the deft, against the pltf. on the contrary the pltf. should have been awarded costs even though the suit was dismissed, as the pltf, had succeeded in proving his right of easement.

Excepting the question of costs, I shall deal with the other questions together as they are more or less interconnected. Now it is admitted that the Easements Act was not specifically applied to the State of Bhavnagar, but its spirit & principles were being followed. The suit was filed in 1947 & the Easements Act as applied to the State of Saurashtra came into force on 1-6-1949. Nevertheless the learned Advocate for the applt. has argued as if the Easements Act were in force and has referred to the relevant Sections on the basis that the principles of the Easements Act were being followed in the State of Bhavnagar. I have, therefore, thought it proper to refer to the provisions of the Easements Act. The relevant Sections are Sections 15, 28, 33 & 35 & the corresponding Section 26, Limitation Act. Section 15 says:

Where the access & use of light or air to & for any building have been peaceably enjoyed therewith, as an easement, without, interruption, & for twenty years,� the right to such access & use of light or air...shall be absolute....

Section 28(c) says:

The extent of a prescriptive right to the passage of light & air to a certain window, door or other opening is that quantity of light & air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used.

Section 33 reads as under:

The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement, or of any right accessory thereto, provided that the disturbance has actually caused substantial damage to the pltf.

Expln. 1 to 8. 33 reads as under:

The doing of any act likely to injure the pltf. by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage is substantial damage within the meaning of this section & Section 34.

Section 35 reads as under:

Subject to the provisions, Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement

(a) if the easement is actually disturbed, when compensation for such disturbance might be recovered under this chapter;

(b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, it performed, disturb the easement.

Section 26, Limitation Act, is a repetition of Section 15, Easements Act. In. the Bhavnagar State the prescriptive period for acquisition of right of easement was 30 years.

The learned Advocate for the applt. contended that reading the above provisions contained in Sections 15 & 28(c), the right of easement of light & air extends to the full & entire quantity of light & air which was accustomed to enter the door & apertures existing in the pltf.''s building & such right has become absolute & indefeasible by the enjoyment for the prescriptive period. Consequently, if the deft''s action has led to the diminution of such light & air to any the least degree, there would be an infringement of the pltf.''a right & it would be action, able under the maxim ''Ubi jus ibi remedium''. This question has been considered by the H.Cs. in India more than once & apparent inconsistency between the definition of the right under Sections 15 & 28 of the Act on the one hand & the remedy provided by Sections 33 & 35 on the other has been reconciled. It is not necessary for me to go in details into the history of legislation & the interpretations put by the learned Judges of the H.Cs. & how far the principles of the English Law have been incorporated in the legislation. Section 15 read with Section 28(c) seems to imply that the right of easement in theory extends to the entire quantity of light & air which has been enjoyed for the prescriptive period & it would consequently follow that any infringement of this absolute right to however small extent would be actionable. This was the view taken by Aikman J., in the case of Kunni Lal v. Kundan Bibi 29 ALL. 571. He held that the principles of English Law laid down in the well known case of Colls v. Home and Colonial Stores Ltd. (1904) A.C.C. 179, were not incorporated in the Easements Acts & that he was guided by the statutory law as it existed in India. It may be mentioned that before Coll''s case 1904 A.C.C. 179 : 73 L.J. Chh.. 484, came before the House of Lords, there were certain decisions particularly the case of Calcraft v. Thompsom (1867) 15 W.R. 387, which took the view similar to the one taken by Aikman J. in the case of Kunni Lal 29 ALL. 571 : 4 A.L.J. 477. These decisions were overruled by the Coil''s case 1904 A.C.C. 179 : 73 L.J. Chh. 464 , which lays down that the easement of light does not consist in a right to have a continuance of all the light which has previously come to the windows of the dominant tenement. What the dominant owner is bound to show in order to maintain an action is that the interference is such an obstruction of light as to interfere with the ordinary occupation of life. In other words, the nature & extent of the right is to have that amount of light through the windows of the dominant house which is sufficient according to the ordinary notions of mankind for the comfortable use & enjoyment of the house as a dwelling house. Unless the interference amounts in law to an actionable nuisance, the owner of the dominant tenement has no right against the person who interferes with his light. The mere interference with the light coming to the dominant tenement or the mere fact that after the interference complained of, the owner of the dominant tenement has not so such light as before, does not of itself constitute a nuisance. These are the principles laid down in Coil''s case 1904 A.C. 179 : 78 L.J.Ch. 484 & other cases following it, referred to in Halsbury''s Laws of England (Hailsham Edn.) vol. II in paras 595 & 596 at pp. 338 339 & 340. These limitations on the absolute right to the full amount of light & air enjoyed for the prescriptive period can be gathered by reading Sections 33 to 35, Easements Act, which lay down in what cases an action lies for a disturbance of an easement. These sections in dear terms mention that unless there is substantial damage, action would not lie. We, therefore, find that Kunni Lal''s case 29 ALL. 571: 4 A.L.J. 477), has not been followed by the same H.C. in its later decisions nor by other H.Cs. It has been dissented from in the case of Suraj Narain Vs. Kalyan Das , wherein the conflict between the right of easement & the remedy provided has been pointed out in the following terms:

Although the Indian Legislature in Section 28(c) had adopted a view as to the extent of a prescribed right to the passage of light & air to an opening which was not in accordance with the view taken by the house of Lords in Colls v. Home & Colonial Stores Ltd. 1904 A.C.C. 179, yet the Act had out down the effect of the wider definition of the prescriptive right by only allowing any remedy where the disturbance caused substantial injury. In other words, it held that the Easements Act had given a right without a co-extensive remedy. This appears to be in conflict with the general principle, Ubi jus ibi remedium. It is obviously desirable that no rights should exceed the limits of the remedy to enforce it. This criticism however, of the Easements Act cannot affect the interpretation to be put on that Act. It is for the legislature to avoid disagreement between the extent of a right & the extent of the remedy, but it is for the Cts. to confine themselves to the remedy allowed by the statute.

A later ruling of the same H.C. reported in Wali Mahomed v. Batull AIR 1986 ALL. 517, also differs from the view taken in Kunni Lal''s case (29 ALL. 531 : 4 A.L.J. 477). The Madras H.C. in Esa Abbas v. Jacob Haroon 33 Mad. 827, held that although the extent of the prescriptive right to the passage of light & air to a certain window is the quantity of light & air which has been accustomed to enter that opening during the prescriptive period u/s 28, Easements Act, no invasion of such right will give a right to compensation unless substantial damage is caused within the meaning of Section 33 of the Act. The Bombay H.C. in the case of Bhimaji Vasudev v. Yeshvant AIR 1929 Bom. 388, followed the principles laid down in Coil''s case (1901 A.C.C. 179 : 73 L.J. Chh. 484) & has held that in order to maintain an action for mandatory injunction for removal of an obstruction of ancient lights, substantial privation rendering the occupation discomfortable & not merely sensible obstruction is necessary. It was held that although there was material diminution of the amount of light, in spite of this diminution the pltf''s house was of substantial use & occupied by the tenant paying the same rent. In that case compensation was awarded instead of a mandatory injunction. An earlier case of the same H.C. to which reference may be made is that of Framji Shapurji v. Framji Edulji 7 Bom. L.R. 73, which went in appeal, the judgment being reported in Framj Shapurji v. Framji Edulji 30 Bom. 319, wherein what is a disturbance of easement has been considered & it was observed as under:

Disturbance is it word possessing a special legal significance in English law. In Blackstone''s Commentaries it is stated, ''The last species of injuries to real property--which, in some instances, amounts also to the injury of nuisance of which we have already treated--is that of'' disturbance : which is the wrongful obstruction of the owner of an incorporeal hereditament in its exercise or enjoyment. And in Gale on Easement, Edn. 6 p. 652, it is said, ''it is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total obstruction of the easement. The injury complained of must be of a substantial nature, in the ordinary apprehension of mankind, & not arising from the caprice or peculiar physical constitution of the party aggrieved.

Reference may be made to a decision of the Sind J. C''s Ct. in the case of Abdullah v. Municipal Corporation, Karachi AIR 1939 Sind 39, confirmed on appeal in Abdullah v. Municipal Corporation, Karachi AIR 1941 Sind. 211, in which the principles of Coil''s case 1904 A.C.C. 179 : 73 L.J. Chh. 484, have been followed in their entirety. Reference in this case has been made to a P.C. decision of P.C.E. Paul v. W. Robson A.I.R 1914 P.C 45, wherein the principle of Coil''s case (1904 A.C.C. 179 : 73 L.J. Chh. 484) were followed & it was remarked:

The easement has not to be measured by the amount of light & air that had been enjoyed. There is no infringement unless that which has been done amounts to a nuisance.

It may be mentioned that ibis case came from Bengal where the Easements Act was not in force & the principles of English law were being applied. In my opinion, the combined effect of Sections 15, 28 & 33 to 35 is that for all practical purposes the principles of an actionable disturbance of an easement ate the same in India as in England, although the provisions of the Easements Act are not happily worded. These principles may be taken as fairly settled, so that interference with the right of easement may be graded into three degrees : (1) An interference which does not result in substantial damage within the definition of Expln. 1 to S 83 & gives no cause of action altogether; (2) an interference which although may cause substantial damage may not give the aggrieved party, relief by way of an injunction; the Ct. considering the extent of the invasion of the right & other circumstances may come to the conclusion that the damages would be sufficient The above two Bombay cases cited above appear to fall in this category; & (3) an interference which so materially affects the utility of the dominant tenement that injunction would be the appropriate remedy. Of course, as specifically stated in Section 85 the principles whether the damages or specific relief by way of injunction should be granted will depend upon the provisions of the Specific Relief Act & each case will have to be determined upon its peculiar facts & circumstances; but a broad distinction between an interference which gives a right of action & that which does not always to be kept in view.

Bearing the above principles in mind, let us judge this case. Both the Cts. have held that the construction an the servient tenement has not affected the passage of light & air to a material degree. Mr. A.R. Baxi the Learned Advocate for the applt. has criticised that the approach to the question by both the Cts. was faulty in as much as both the Cts. have gone on the basis that unless the interference affected the health of the inmates of the dominant tenement, it would not be actionable. On a close reading of the judgment & the evidence adduced in the case, this contention is incorrect. Although both the Cts. have stated that no doctor or any expert evidence has been examined, yet it appears that these observations were made in the judgments in view of the claim made by the pltf. that as a result of the action of the deft, some of the occupants of the pltf''s house had in fact fallen ill. Both the Cts. held that this was not proved. The learned advocate has next attacked that in considering whether there has been material deprivation, the lower Cts. have considered light from other apertures in respect of which the right of easement had not matured. It is true that in considering other sources of light, the Ct. should not take into consideration any aperture over which the owner of the dominant tenement would have no right to receive light therefrom. See in this connection Halsbury''s laws of England (Hailsham Edn.) vol. 11, para. 599 at p. 342. But in the present case the lower appellate Ct. has taken into consideration principally the light coming to the pltf''s rooms in question from other parts of the pltf''s house. So this objection also fails. The learned advocate then contended that the pltf''s case in any case fell within the first part of Expln. 1 to Section 33, Easements Act, which includes within the definition of the substantial damage any act of the servient tenement which destroys the evidence of the right. This point has not been urged in the two lower Cts. Apart from this, I cannot see how the evidence of the pltf''s right of easement is affected by the construction made by the deft. The next argument of the learned advocate was that in any case damages should have been awarded since both the Cts. have held that the pltf. had succeeded in getting a declaration as to his right of easement. The question of damages, in my opinion, depends upon whether the interference comes either in the first degree above stated where an action does not lie at all or whether it falls in the second degree where although an injunction is refused damages may be the appropriate remedy. Both the Cts. have held that the interference is cot actionable as the deprivation of light is not material & the pltf''s property has not decreased in value. It must also be borne in mind that between the pltf, & the deff''s houses, there is an open strip of land belonging to the pltf. The construction made by the deft, beyond this open strip of land has not in the circumstances of the present case affected the utility of the pltf.''s building. This is the finding of both the lower Cts. I accordingly hold that the interference is not actionable & the pltf. is not entitled to any damages.

There remains the question of costs. The pltf. has no doubt partially succeeded in getting a declaration, of his right of easement which was denied by the deft. He has also partially failed in not getting any other relief except as to this declaration. The pltf had to agitate his claim as to easement because of the denial of his right by the deft. Under the circumstances, I think, this is a fit case where the parties should bear their own costs throughout. I accordingly vary the decrees of the two Cts. to this extent that the parties will bear their own costs. In the present appeal also the parties will bear their own coats.