K. Mohideen Ibrahim vs M. Muhammed Abdullah

Suryamurthy, J.—This is an appeal by the plaintiff from the judgment and decree of the learned District Judge, Ramanathapuram at Madurai

dismissing A. S. No. 121 of 1975 on the file of his court and confirming the judgment of the learned Subordinate Judge, Ramanathapuram at

Madurai, dismissing O. S. 75 of 1973, a suit instituted by the plaintiff for declaration that the suit wall marked AB in the sketch annexed to the

plaint is the exclusive wall of the plaintiff, for declaration that the plaintiff is entitled to right of easement for free flow of light and air through the

windows marked W-3 to W-7 in the aforesaid sketch, for a permanent injunction restraining the defendant and his men from interfering in any way

with the plaintiff''s right to light and air through the said windows and for a mandatory injunction directing the defendant to remove the terraced

portion of the building immediately west of the windows W-1 and W-2 and the constructions put up by him west of the windows W-3 and W-4.

The house bearing door No. 97 in Periappallivasal St, Virudhunagar originally belonged to Kader Mohideen Rowther father of the plaintiff. The

father of the plaintiff inherited a portion of the said property from his father and purchased the remaining portion under a registered sale deed dated

22-10-1910. The old constructions were demolished and new constructions were put up in the year 1911 or 1912. According to the plaintiff, it

was his father who constructed the western wall as well as the eastern wall for the building bearing door No. 97. At the time of the construction of

the walls, the plaintiffs father put up five windows on the ground floor marked as W-1 to W-5 in the plaint sketch and two windows in the upstairs

portion marked as W-6 and W-7. The said windows are ancient windows through which the house was getting light and air from the open space

on the western side. The plaintiff''s contention is that the western wall of the said door No. 97, which is the subject-matter of the suit, is his

exclusive wall and that he has acquired an easementary right for his house through the windows W-1 to W-7.

The western house bearing door No. 96 originally belonged to one Ismail Rowther son of Hussain Rowther. According to the plaintiff, originally

there was a construction only on the southern portion of the said house and the remaining portion was a vacant site and the owner of that building

had absolutely no right whatsoever to the western wall of door No. 97. One Arunachala Nadar purchased the eastern half of door No. 96 from

one Abdul Kader Rowther in the year 1958. He removed the terraced portion that was then in existence and which was below the level of the

windows W-1 and W-2 in the suit wall and put up a new construction to 1959 at a higher level, thereby obstructing the two windows. He. also put

up a tiled verandah adjoining the suit wall and sloping towards south. That construction also, according to the plaintiff, obstructed a portion of

window No. 4 in the suit wall. The plaintiff contends that as he was at Madurai at the time of the said constructions, he was not aware of them and

as soon as he came to know about the constructions, he issued a notice on 21-10-1959, to Arunachala Nadar calling upon him to remove the

offending constructions. There was talk of compromise and Arunachala Nadar agreed to remove the offending portions in order to facilitate the

free flow of the light and air to the house of the plaintiff through the windows W-1, W-2 and W-4 and removed the tiled construction adjoining the

window W-4. However, he did not remove the construction which was causing obstruction to the other two windows. Subsequently, the

defendant purchased door No. 96 from Arunachak Nadar under a registered sale deed dated 22-1-1973. In that document, the suit wall is

described as a common wall. The contention of the plaintiff is that this recital is false and has been introduced deliberately for the purpose of putting

forward a false claim to the suit wall. The defendant applied to the Virudhunagar Municipality for reconstruction of his building. He filed a plan

showing the suit well as a common wall. The plaintiff sent a petition to the Commissioner of Virudhunagar Municipality objecting to the issue of

permission to the defendant for putting up constructions in such a manner as to affect his right to the suit wall and also his easementary right of light

and air through the windows in the suit wall. He also gave a complaint to the police on 19-4-1973. The police made an enquiry. According to the

plaintiff, he and the defendant gave an undertaking to the police not to put up any new construction without settling their disputes either with the aid

of mediators or through a competent court. Overruling the objections raised by the plaintiff, the Commissioner of Virudhunagar. Municipality

granted permission to the defendant to put up constructions. In pursuance of that permission, the defendant started digging up the grounds to lay

the foundation of his building close to the suit wall The plaintiff once again sought the help of the police. On 23-5-1973, the plaintiff received a

copy of the order, dated 21-3-1''973, passed by the Commissioner of the Municipality granting permission to the defendant to put up

constructions. He directed the plaintiff to seek, his remedy in a Civil Court. According to the plaintiff, he rushed to Madurai immediately to take

necessary legal action against the defendant and taking advantage of his absence from Virudhunagar, the defendant removed the tiled roof

adjoining the fourth window from the south and raised the east-west in between the windows W-3 and W-4 to such a height as to obstruct the

said windows. He also laid rafters from north to south in order to put up a terrace over them. The contention of the plaintiff is that if the defendant

is permitted to construct a building, the passage of light and air through the windows W-3 and W-4 would be completely cut off and his building

will become unfit for occupation.

The contention of the defendant is that the wall is a common wall, that both the buildings have been in existence even from prior to 1900 that in a

Will dated 17-7-1934 in respect of door No. 96 and some other properties, which was attested by the father of the plaintiff, the suit wall has been

described as a common wall, that all the windows in the disputed wall had been closed even during the lifetime of the plaintiff''s grandfather, that

Arunachala Nadar remodelled the then existing building and that the claim of the plaintiff for easementary right of light and air is untenable and has

been put forward merely to harass the defendant who has purchased the building despite the attempt of the plaintiff to purchase the same.

It has been found by the court below that the suit wall is a common wall and that the plaintiff is not exclusively entitled to the wall. This finding is

based on evidence, oral and documentary, adduced by both sides. This finding of the courts below is correct. The trial court has further found that

by reason of the construction put up by the defendant, the windows W-1 and W-2 in the southernmost portion of the suit wall had been closed

even in the year 1958 when door No. 96 belonged to Arunachala Nadar and that even according to the plaintiff there is no obstruction to the

passing of light and air through the window W-5 or the windows W-6 and W-7. It has been further found by the learned Subordinate Judge that

even according to the plaintiff there is no offending construction blocking W-3 and W-4. These findings of fact have been concurred in by the

learned District Judge. Therefore, on facts, the plaintiff is not entitled to the injunction prayed for. The plaintiff has not established that there was

such a substantial deprivation of light and air to this house as to render the occupation of his house uncomfortable, according to the ordinary

notions of mankind and as beneficially as before.

The question to be considered is whether the plaintiff is entitled to the injunction prayed for in view of the fact that the windows, through which

he claims easementary right, are situate in the common wall belonging to the plaintiff end the defendant. This question was considered by a Bench

of the Bombay High Court in Rajubhai Mohanbhai Vs. Lalbhai Mulchand and Others, and it was held that--

There can be no question of easement as regards light and air in the case of joint property. Both parties were entitled to the full ownership of this

wall and the plaintiff, after the fire in 1884, repaired the party wall with the consent and acquiescence of the defendants. Then the result would, be,

as was decided in Imambhai v. Rahimbhai AIR 1925 Bom 373 : ILR 49 Bom. 586, that where one of two neighbouring owners raises a party

wall, the other owner either giving his consent of acquiescing, the raised portion of the wall assumes the same character as the old party wall On

which it stands. If the plaintiff opened apertures in the wall he could not acquire an easement of light and air through these windows over the

defendants'' premises. It would be open to the defendants to object to the windows being opened, and even if they did not file a suit that would not

prevent them from blocking the windows opened by the plaintiff so as to look over the defendants'' premises.

The plaintiff therefore was not entitled to the injunction sought for in the plaint.....

In Konda v. Ramaswami, ILR Mad 1 : AIR 1916 Mad 718 , Sundara Ayyar and Sadasiva Ayyar, JJ. held that--

there is no reason why a person who walks along a certain land without the permission of the true owner and in the assertion of a right to walk

should not create in favour of the enjoyer a prescriptive right of easement, simply because he mistakenly supposes that he is the owner of the land

or asserts that his act of enjoyment is sufficient to give him the ownership by prescription.

Similarly in Venkata Varaha Dikshithar v. Subbarya Pillai, (1911) 2 Mad WN 95 it was held that ""a false belief of ownership does not necessarily

preclude the acquisition of a right of easement."" However, in Attorney General of Southern Nigeria v. John Holt and Co. Liverpool Ld., 1915 AC

: AIR 1915 PC 131 the Privy Council held that--

An easement, however, is constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the dominant

tenement throughout admits that the property is in another, and that the right being built up or asserted is the right over the property of that other ...

... ...

Therefore, the learned Judges of the Bench of this Court, who heard an appeal in the first instance in the case reported in (Pannala) Subba Rao Vs.

(Parupudi) Lakshmana Rao and Another, thought that the judgment of this Court referred to earlier may have to be modified in view of the

decision of the Judicial Committee Which was based not on the Indian Easements Act but on the English law. Odgers J. who was one of the two

Judges who made the reference, was of the opinion ""that the ruling in Konda v. Ramaswami, ILR Mad 1 : AIR 1916 Mad 718, with great

deference to the opinion of the two eminent Judges who decided it, is wrong and that if a man exercises a right with the animus or consciousness

that he is exercising a proprietary right in his own land and not a right over another''s land he cannot acquire a right of easement by prescription"". In

answering the reference, the Full Bench held that--

The learned Judges in Konda v. Ramaswami, ILR Mad 1 : AIR 1916 Mad 718, seem to imply that the assertion of ownership during the period

of user is not fatal to the success of a claim to an easement. To this proposition we cannot assent. Our opinion is that while the mere putting

forward of a wider claim in legal proceedings is not conclusive against the right of easement, yet the question quo animo agerit to what purported

character are the acts of user to be ascribed is one which the court must answer, and if Konda v. Ramaswami, ILR Mad 1 : AIR 1916 Mad 718

implied the contrary we think it is wrongly decided. We agree with the conclusion of Shearmen, J. in Lyall v. Lord Horthfield, 1914 3 KB 911,

that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an

easement. The question of animus in this case is one of fact ... ... ...

Therefore, a person cannot acquire an easement unless he acts with the knowledge that it is a case of dominant and servient tenement and he is

exercising a right over property which does not belong to him. If he enjoys a right under the supposition that he is the owner of the property does

not acquire an easement. He cannot also acquire an easement of light and air over property jointly owned by him with others. A Bench of the

Bombay High Court in Narayan Balvant Jade Vs. Shankar Waman Govaikar, has held that ''it is not possible for a person to acquire an easement

of light and air through window in a joint wall belonging to himself as well as to the owner of the other premises.

The ratio behind these decisions is that when one of the owners of a common wall opens windows in that common wall, he does so in exercise

of his rights as a co-owner and, therefore, cannot acquire a right of easement in respect of the windows against the co-owner. A right which cannot

be pre-vented from being exercised by physical interference during the period of enjoyment cannot be acquired as an easement. Before time can

commence to run under the Easements Act, there must be an invasion of some legal right. Acts which are neither preventable nor actionable cannot

be relied upon to found an easement. In the case of a common wall, each co-owner is entitled to a reasonable user of the wall owned in common

and so long as each co-owner uses it reasonably without interfering with the enjoyment of that wall by the other co-owner or without doing

anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes and the other co-

owners will have no cause for complaint unless the acts alleged amount to his ouster or to the destruction of the party wall. The opening of the

apertures in the common wall by the plaintiff should, therefore, be treated as incidental to the enjoyment of the common property and it does not

amount to trespass upon the right of the other co-owner which would entitle him to prevent such trespass by physical obstruction or by an action in

a court of law When there is no scope for such an action, the plaintiff cannot be deemed to have acquired a right of easement by prescription to

ancient light and air through those apertures.

In M. Nageswara Rao Vs. S. Ramachandra Rao, , a Bench of the Andhra High Court has held that the co-owner of a joint wall could not

acquire an easement in respect of light and air through the windows in the joint wall whatever may be the period of his enjoyment prior to the date

of the suit, as the normal method of enjoyment of joint wall also includes the enjoyment by opening windows or ventilators which could not give

rise to any trespass so as to give a cause of action for an obstruction or a suit in a Civil Court to prevent it at the instance of the other owner. I

follow this view of the Bench of the Andhra Pradesh High Court. Therefore, the plaintiff is not entitled to claim an easementary right by prescription

to ancient light and air through the seven windows in the common wall. Hence the judgments and decrees of the courts below are confirmed and

this second appeal is dismissed with costs.