Misrilal vs Mohanlal and another

Nigam, J.C.

Misrilal filed Civil Suit No. 92 of 1952 claiming a mandatory Injunction directing the defendants to remove constructions, viz., the five feet wall with windows on the third storey described in para 5 of the plaint and also a permanent injunction restraining the defendants from in any way obstructing or interfering with the light and air in the plaintiff''s room in the second and third storeys. The suit was contested and the learned 2nd Additional Subordinate Judge, directed that the newly raised wall be not demolished, i.e., he refused the mandatory injunction. He, however, restrained the defendants by means of a perpetual injunction from further raising the wall or in any other manner interfering with the plaintiff''s right of light and air through the windows in the western wall of his property. Against that judgment and decree the two defendants filed an appeal before the District Judge, praying that the plaintiff''s suit be dismissed in toto. In this appeal a cross-objection was filed by the plaintiff urging that the trial Court was wrong in not granting the mandatory injunction prayed for.

The appeal and cross-objection were disposed of by the learned District Judge by one judgment dated 1-8-1952, but two separate decrees were prepared, one in respect of the appeal and the other in respect of the cross-objection which was registered separately. The learned District Judge allowed the appeal, dismissed the cross-objection and dismissed the plaintiff''s suit in toto. Now the plaintiff has come up in second appeal. One appeal has been filed, though the plaintiff has filed copies of both the decrees prepared in the Court of the District Judge. In the appeal, I have heard the learned counsel for the parties.

A preliminary objection has been taken by the learned counsel for the respondents. The contention is that since two decrees were prepared, two separate appeals should have been filed. I am unable to see any force in this contention. It was not a case of two separate appeals. Only one appeal was filed and the plaintiff filed cross-objections. These cross-objections were incorrectly registered separately. The practice of registering the cross-objections separately must stop. I am further of opinion that only one decree should have been prepared. It was entirely wrong to prepare two separate decrees, one in the appeal and the other in cross-objections. This practice should also cease.

As there was only one appeal and only one decree should have been prepared, it follows that only one second appeal could have been filed. As such, the contention that two separate appeals should have been filed has no force.

In the suit a mandatory injunction was claimed in addition to the perpetual injunction granted by the learned trial Judge. In this second appeal, the learned counsel for the appellant has'' urged that the mandatory injunction sought for should have been granted to him. There is how-ever, no force in this contention as the findings of both the Courts below are concurrent on the point. It has been held by both the Courts that the wall that has been constructed upto date does not materially affect the light and air available to the plaintiff. I, therefore, see no force in this contention.

The second point urged by the learned counsel for the appellant is that the learned District Judge was wrong in disallowing the perpetual injunction granted by the learned trial Judge on the ground that the defendants'' land did not adjoin the land owned by the plaintiff. The learned District Judge stated:

In order to claim a right of easement, the two tenements must be adjacent. That not being so, the plaintiff is not the owner of a dominant tenement nor are the defendants the owners of a servant tenement.............

The learned counsel urges that it is not necessary under the Indian law that the two tenements must adjoin. The learned counsel refers to Iyer''s Easements, 1915 Edn., p. 45. The passage relied upon reads:

Under this Act, the heritages need not adjoin, or even be near, each other, the Act here intentionally varying from Roman and English Law: Whitley Stokes'' Anglo-Indian Codes, Vol. I, p. 880.

I have also been referred to Joshi''s Easements, p. 14. The passage reads:

It was for this reason that it was held in England that the dominant tenement should always be found to be touching or adjoining the servant heritage for otherwise it was feared that the servitude would be useless to the owner of dominant heritage.

In the foot note a reference is made to three English cases and then with reference to Whitley Stokes'' Anglo-Indian Codes, Vol. I, p. 880, it is stated that in India the dominant and the servant tenements need not be adjacent.

The learned counsel for the respondents has referred me to the illustrations (a) and (d) to S. 4, Easements Act, showing that the servient tenement must be adjacent. The same does not appear to be the case in illustrations (c) and (d).

The learned counsel has also referred me to the commentary by Joshi on Easements and Licenses, 1939 Edn., p. 12 and relies on the passage:

These adjectival rights appurtenant to a tenement are to be enjoyed, by their lawful owner over some adjoining land of a neighbor, whose property rights are correspondingly curtailed to the extent of the servitude imposed over his land.

The learned counsel have not cited any rulings on the point.

It appears to me that there may be certain cases, for example, right of passage or the right to flow water, in which an easement may be exercised over certain land which may not adjoin the dominant tenement. In those cases, however, it would be necessary that the right of easement should exist over some neighboring land also. There may, however, be other cases such as given in illustrations (c) and (d) to S. 4, in which the right may be exercised on a servient tenement not adjoining the dominant tenement and the adjoining land also may not be subject to the easement. Thus all that can be said is that under the Indian law it is not essential that the servient tenement must be adjoining.

So far as, however, the easement of light and air is concerned, I am of opinion that there is a certain degree of acquiescence involved. There should be a possibility that the owner of the servient tenement, whose rights are limited, could interrupt the enjoyment of the growing right during the prescriptive period by asserting his own proprietary rights against the owner of the dominant tenement. It appears to me that it is only in the absence of effective opposition on the part of the owner of the servient tenement that the rights of the owner of the dominant tenement mature. Thus in the case of such easement, no prescriptive right can be said to have accrued unless the owner of the servient tenement had the right of obstruction or opposition and could prevent the accrual of those rights by prescription.

In the case before me, there is a land 6� ft wide between the two tenements. The defendants could not have objected to any door or any window'' opened by the plaintiffs as they did not open on their land. As such, I am of opinion that no easement against the defendants was prescribed for. In the circumstances, I am of opinion that the plaintiff was not entitled to any injunction against the defendants.

No other point has been pressed before me.

Accordingly, I see no force in this appeal and dismiss it with costs.