Mt. Jadooie Kaharin vs Mt. Kisun Basi Kuer

Ross, J.

This is an appeal against the decree of the Additional Subordinate Judge of Arrah confirming a decree passed by the Munsif in a suit brought by the plaintiff-respondent for a declaration of her prescriptive right to light and air through two windows, E and F in the plan annexed to the plaint, in an upper room of her house, and for an injunction restraining the defendant from obstructing this light and air. The Munsif found that the plaintiff had acquired the easement which she claimed and that the defendant by raising a second storey on her house opposite to the windows of the plaintiff had committed a nuisance causing a complete obstruction of light, and that by the raising of this building the rooms were substantially less comfortable than before. The learned Subordinate Judge affirmed these findings and held that the light through the windows in suit had been practically shut out and the air passages had been materially interfered with and that practically no light could pass to the plaintiff''s windows; and that this constituted a grave nuisance to the plaintiff.

These decisions are attacked by the appellant on the ground that besides the two windows E and F on the south of her room the plaintiff has two windows on the north and a door on the north and a door on the east; and that the light coming to her room through these channels has not been taken into consideration. On this point the learned Munsif said:

The existence of the windows on the north does not affect the merits of the case, because it is perfectly irrelevant that the room, in spite of the obstruction complained of, is still well lighted or that there is sufficient light from other sources. The plaintiff cannot be asked to give up her ancient light and it is no defence to say that the plaintiff his sufficient light for her present business.

The learned Subordinate Judge in dealing with the contention that the plaintiff had other sources of light and air, said that he had not been shown any authority to the effect that easements to light and air through certain windows can be obstructed with impunity because the plaintiff has got also other sources of light and air. He was of opinion that the plaintiff had the option of shutting up the other sources according to her necessities and convenience and that the defendant could not dictate to the plaintiff to keep the other sources open because the defendant would obstruct the light and air to the windows in suit.

The learned advocate for the appellant referred to the decision of the Judicial Committee in Paul v. William Robson AIR 1914 P.C. 45 in particular, to a passage in the judgment of Lord Atkinson in Jolly v. Kine [1907] A.C. 1 quoted in that decision where his Lordship says:

It would appear to me that case [Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179 established the principle that there must be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action and that as long as he receives through the windows of his dwelling house, or in the case of a particular room in his dwelling house, through the windows of that room an amount of light which... is sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling house, or of the room in it, as the case may be, no nuisance has as regards him been created, and no legal wrong has been inflicted upon him.

Now Paul v. William Rolson AIR 1914 P.C. 45 was not a case in which this particular question now under consideration arose, and the passage quoted from the judgment of Lord Atkinson does not deal with this particular point. The point was dealt with in Dyers'' Co. v. King [1870] 9 E.Q. 438 where James, V.C., said:

The right is a right as between the owner of the dominant tenement and the owner of every servient tenement; he has a right to as much light to and for the use of his house over his neighbour''s land as he enjoyed 20 years ago and the neighbour has no right to deprive him of the light which has so come to and for the use of the house over the neighbour''s land because the owner of the dominant tenement has, either by purchase from, or by the free gift of, any other person, or by the operation of any act of Parliament, obtained other light in addition to that which he had a prescriptive right to. Of course, in one aspect of the case, it might be very material to take into consideration the light which he had so acquired, because, if the light which he had so acquired in addition to the prescriptive right was so much in excess of anything he required for the reasonably comfortable enjoyment of the premises as he enjoyed them, you might say, ''What is the use of your complaining? You have plenty of light, and what I am going to do will not interfere with you, because when it is done you will have as much light as any reasonable being can ask for, unless he wanted to interfere with his neighbours capriciously and vexatiously?

The meaning of that passage was elucidated by Lord Lindley in his opinion in Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179 where at pp. 210-11 his Lordship said:

As regards light from other quarters, such light cannot be disregarded; for, as pointed out by James, V.C., in Dyer''s Co. v. King [1870] 9 E.Q. 438, the light from other quarters and the light the obstruction of which is complained of, may be so much in excess of what is protected by law as to render the interference complained of non-actionable. I apprehend, however, that light to which a right has not been acquired by grant or prescription, and of which the plaintiff may be deprived at any time, ought not to be taken into account (see the case just cited).

In Jolly v. Kine [1905] 1 Ch. 480 Romier, L.J., at p. 497 quoted this passage from the judgment of Lord Lindley and observed that:

It appears to me that those are sufficient directions to me as to the law on the subject.

When Jolly v. Kine [1907] A.C. 1, came before the House of Lords [Jolly v. Kine [1905] 1 Ch. 480] Lord Atkinson at p. 7 said:

Of course, in determining whether or not the quantity of light which the owner of the dominant tenement will, after the obstruction complained of, continue to enjoy is sufficient within the meaning of this decision, regard can only be had to the light which that owner is by grant or prescription legally entitled to enjoy. Any light which may with impunity be at any time obstructed, windows which may at any time be almost entirely blocked up or altogether darkened, must necessarily be left out of consideration.

The learned Advocate for the respondent referred to the decision in Puran Mudduck v. Ooday Chand Mullick 3 W.R. 29, where it is said that:

it is no answer to this to plead that the party complaining has other windows on another side of his premises. He is entitled to retain the light and air he has always had, and the owner of the adjacent land cannot obstruct it.

In view of the later English decisions, this decision can no longer be considered law; but the decisions that I have quoted make it clear that the mere existence of other sources is not a sufficient answer to the plaintiff''s case. In the present case there is nothing to show, and no finding, that the plaintiff has any prescriptive right to light through these other channels. These other channels, therefore, cannot be taken into consideration and the decision of the Courts below is correct.

The plaintiff also complained that her right of privacy had been infringed. There is a finding on this point in her favour and the learned advocate for the appellant was unable to show any reason for not giving effect to that finding. All that he could say was that it was a minor part of the ease. Peacock, in his Law of Easements, at p. 206, refers to this right of privacy as being generally recognized in India as an easement which may be acquired in virtue of a local custom and he refers to the opinion of Dr. Whitley Stokes that:

the right of privacy founded as it is on the oriental custom of secluding females, is of great importance.

There was an issue, whether the plaintiff is entitled to more light and air than that allowed by the rule of 45 degrees. It was found by the Munsif that:

in this case the rule of 45 degrees does not apply, because no light can come from the south on account of the fact that the defendant''s room to the contiguous south of the disputed windows has been thatched.

Before the learned Subordinate Judge the defendant requested permission to build under the rule of 45 degrees; and the learned advocate referred to a plan which purports to have been made in accordance with this rule. It is sufficient to say that the plan is not according to the rule of 45 degrees as the learned Subordinate Judge has pointed out.

The appeal must, therefore, be dismissed with costs.