Kasturi Lal and another vs Krishan Chand and others

S. Murtaza Fazl Ali, C.J.—This is an appeal by the defendants under the Letters Patent with the permission of the Single Judge (Jaswant

Singh, J.).

The appeal arises out of a suit filed by the plaintiffs for permanent injunction restraining the defendants from erecting their building in such a

manner so as to close two ancient ventilators existing on the Western side of the plaintiffs house and thereby cause obstruction to the plaintiffs right

to receive light and air. It was averred by the plaintiffs that by virtue of the proposed construction their right to receive light and air would be

substantially impaired. The trial court after consideration of the evidence and holding a local inspection dismissed the plaintiffs' suit. On appeal the

District Judge reversed the finding of the trial court holding that as the plaintiffs were entitled to the same amount of light and air. which they had

been receiving during the prescriptive period the proposed construction would have the effect of destroying this right and causing substantial

damage to it and that by virtue of the closing of the ventilators there would be a substantial reduction in the plaintiffs' right to receive light and air so

as to amount to nuisance- The learned judge also held that if the building was erected and the ventilators were closed, the rooms would become

dark. There was a second appeal to a single judge of this court against the decision of the District Judge who agreed with the findings recorded by

the District Judge and dismissed the appeal. The learned single judge, however, held that even if other sources of light were available to the

plaintiffs after the closure of the ventilators, since there was no evidence to indicate that the plaintiffs had acquired a prescriptive right in these

sources, the relief of injunction could not be refused to them.

The main point contended before us by the counsel for the appellants is that the single judge as also the District Judge have made a completely

wrong legal approach to the facts of the present case. Their judgments proceed on the interpretation of Section 33 of the Easements Act

(hereinafter to be referred to as the Act) which according to the learned counsel controls Sec. 35. In other words it has been argued that unless the

plaintiffs prove that there has been a substantial reduction in their right to receive light and air so as to amount to a nuisance or a substantial damage

as contemplated by the Explanations 1, 2 and 3 to Section 33 of the Act, no injunction can be granted by the Court. On the other hand Mr. Das

appearing for the respondents has supported the judgments by contending that Sections 33 and 35 relate to two different contingencies and

Section 35(b) is not at all controlled by the Explanations to Section 33. The learned single judge accepted this argument of the respondents and

tried to distinguish the authorities cited before him on the ground that all those authorities related to suits brought by the plaintiffs for compensation

after the easement had already been disturbed, and were therefore covered by Sections 33 and 35(a) of the Act.

We have gone through the authorities to which we shall refer hereinafter and we find that they have not been properly interpreted by the learned

single Judge. Before, however, going through the authorities it may be necessary to understand the scope of Sections 28, 33 and 35 of the Act.

Section 28 confers various rights of easement including the right to passage of light and air. Section 28(b) runs thus:-

In the absence of evidence as to such intention and purpose the extent of a right to the passage of light or air to a certain window, door or other

opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator

died or the non-testamentary instrument was made.

A perusal of this section therefore clearly shows that the statute confers on the dominant owner the right to receive so much light and air as he had

been receiving from the beginning or under a grant. There is no doubt that the section does not place any limitation on the right of the dominant

owner, but Section 28 merely confers a right of easement and Sections 32, 33 and 35 deal with the disturbance of the right to easement. The main

question therefore to determine is as to what can be said to cause actual disturbance of easement, even if a person has acquired a right of

easement.

One view which appears to have been taken by a large number of authorities is that since the grant of injunction is only a discretionary relief,

disturbance of easement would take place only if it amounts to a civil wrong. No person can be allowed to enjoy a right to light and air more than

what is necessary to live a comfortable life or one which is not injurious to his health. There is no indefeasible right to receive light and air to such an

extent so as to deprive the owner of the adjacent property from disposing of his property in any manner he likes.

Thus disturbance of easement would take place only if by virtue of the proposed construction the right of the dominant owner is substantially

impaired or reduced and amounts to an actionable nuisance. Section 33 runs thus:-

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 plaintiff.

Explanation I - The doing of any act likely to injure the plaintiff 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 and Section 34.

Explanation II. - Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial

within the meaning of this section unless it falls within the first Explanation or interferes materially with the physical comfort of the plaintiff. or

prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

Explanation III - Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the

meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.

Section 35 runs thus:-

Subject to the provisions of the Specific Relief Act, Ss. 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, if performed, disturb the easement.

It would thus appear that there is nothing in Section 35 which excludes the application of Section 33 to this section. On the other hand Clause (b)

of Sec. 28 gives the right to the plainti0 to file a suit for injunction only if the easement is disturbed. The Explanations to Section 33 (Supra) clearly

define the nature and extent of the right of easement and provide that the easement can be disturbed only if the value of the dominant heritage is

materially diminished or if the damage is substantial so as to materially affect the physical comfort and health of the dominant owner. In our opinion

Section 35 cannot be read in isolation and must be read in conjunction with Section 33 because both these provisions deal with the same subject,

namely the question of grant of injunction where there is a disturbance of easement.

We are fortified in our view by a decision of the Punjab High Court in Devinder Kumar Vs. Smt. Chatro Devi, , Devinder Kumar v. Chatro Devi

where Khanna, J. (as he then was) pointed out that Section 28 of the Act has to be read along with the provisions of Sections 33 and 35 and a

person complaining of the disturbance of his right of easement must, in order to succeed, prove that the disturbance as owner resulted in substantial

damage. This aspect of the case was fully considered by their Lordships of the Privy Council in AIR 1914 PC 45 where they approved the law

laid down by Lord Davey in 1904 AC 179. The observations of Lord Davey which were approved by the Privy Council are as follows:-

The owner '...............of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the

measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of

mankind.........' The single question in these cases is still what it was in the days of Lords Hardwicke and Lord Eldon, whether the obstruction

complained of is a nuisance?

Their Lordships in that case noticed the divergence of authorities on the question of nature and extent of light and air and appear to have settled the

controversy once and for all because the observations made by Lord Davey received full support in a later case in 1907 AC 1. Their Lordships of

the Privy Council held that ""the owner of the dominant tenement does not possess an indefeasible right to light and air, but an uninterrupted access

through his ancient windows of any quantity of light, the measure of which is necessary for the ordinary purpose of inhabitancy or business."" Their

Lordships further pointed out that the main question in such cases was to find out whether the obstruction complained of amounted to a nuisance.

This view has been taken by a large number of decisions to cite a few, namely, Bansidhar and Another Vs. Matru Mal and Others, , AIR 1965

Mys 292, AIR 1928 980 (Lahore) , Suraj Narain Vs. Kalyan Das and Mst. Dakhan Bai and Mst. Anandi Bai Vs. Dhanraj, . It is pertinent to note

that in T.R. Bhushnam Vs. C. Umapathi Mudaliar and Another, Pandrang Row, J. held as follows:-

A case of this kind is governed by Section 35, Easements Act, according to which, subject to the provisions of Sections 52 to 57, Specific Relief

Act, an injunction may be granted to restrain the disturbance of an easement where the disturbance is only threatened or intended (as in the present

case) when the Act threatened or intended must necessarily, if performed, disturb the easement. Though the word used in this section namely

'disturb' may not prima facie appear to connote a tort or civil wrong, it is clear from the ruling in ILR (1906) 30 Bom 319 that the word 'disturb'

found in this section must mean an illegal obstruction or, in other words, an obstruction in respect of which a suit would lie.

............

Damages and injunction are two remedies alternative in character given in respect of the same wrong, namely, an infraction of the legal right by way

of easement; and such an infraction takes place only when the deprivation is such as to amount to a nuisance.

We find ourselves in complete agreement with the view expressed by the learned judge in this case. We also agree with the view taken by the large

number of authorities (supra) that Section 28 which confers the right of easement has to be read with Section 33 of the Act which indicates the

extent and the limitation under which the right of easement is enjoyed. Indeed if Sec. 28 is completely divorced from the scope of Sections 33 and

35 then the two sections would run contradictory to each other and this will be against the rule of harmonious interpretation of statutes. Section 28

merely indicates in what measure a right of easement of light or air can be acquired but how that right is to be actually enforced when disturbed is

laid down in Sections 33 and 35 of the Act. Thus if disturbance to an easement can be prevented provided certain conditions are satisfied, then it

can be safely presumed that Section 28 impliedly places such limitations while conferring the right of easement on the dominant owner.

In some of the authorities (Supra) the suits were not for mandatory injunction but for an injunction restraining the defendants from making certain

erections; therefore Jaswant Singh, J. was not right when he observed that in all these authorities the suit was for compensation after a building had

already been erected. For these reasons we think that the correct view of law to be taken is that an injunction can be granted by the court where

the plaintiff claims that his right of easement is disturbed, only when the plaintiff is able to show that there has been a sufficient diminution of his right

to receive light and air and that such diminution has caused sufficient damage or amounts to actionable nuisance so as to materially affect the

physical comfort and health of the plaintiff.

In the instant case the finding of fact by the District Judge and the learned single judge is that by closing the ventilators there would be sufficient

reduction in the right to light and air by making the room dark. It is true that there is evidence to show that the plaintiff has other sources of light

available to him even if the ventilators are closed, but the learned single judge rightly pointed out that the other sources of light available to the

plaintiff have not been proved to have ripened into a prescriptive right so as to deprive the plaintiff of the right which he receives through the two

ventilators. No evidence has been adduced to show that the other sources of light which the plaintiff has been receiving are of a nature in which the

plaintiff has acquired also a right of easement. The courts of fact have therefore held that if the ventilators are closed the rooms would be dark

resulting in a substantial diminution of his right to light and air. In view of these findings of fact it is established before us that the defendants'

proposed erection would cause substantial impairment of the plaintiffs' right to easement and it is therefore a disturbance within the meaning of

Sections 32 and 35 of the Act. On this ground, therefore, the plaintiff was entitled to a decree because his case clearly falls within the Explanations

to Section 33.

For these reasons we uphold the judgment of the learned single Judge and dismiss the appeal, though on different grounds. There will be no

order as to costs.

Anant Singh, J.

I agree.