Sofia Bi Bi Saheba vs Vasudeva Chetty and Another

Somayya, J.—This is an appeal by the plaintiff against the judgment of the Principal City Civil Judge at Madras in O.S. No. 555 of 1935.

The suit is for a mandatory injunction directing the defendants to remove the construction on their property so far as is necessary to restore to the

plaintiff the free use of her windows and the quantity of light and air that has been coming through them undiminished and for a permanent,

injunction restraining them from erecting any construction so as to interfere with plaintiff''s use of her windows.

The plaintiff is the owner of a storied house No. 420 situated on the western row of the Triplicane High Road facing the east. The defendants''

are owners of house No. 419 situated next south of the plaintiff''s house. The plaintiff alleges that the southern wall on the first floor of her house

facing the defendants'' house, contains three windows which have been in existence for over 50 years, that she had been enjoying free light and air

through those windows for over 50 years, that the defendants began, about a month or two prior to suit, to construct a first floor on their house

which consisted uptill then of only a ground-floor, that the defendants in so doing put up a wall by the side of the plaintiff''s southern wall and as a

result completely blocked the easternmost of the three windows, that the defendants'' obstruction causes serious danger to the inmates of the

plaintiff''s house and that the value of her property is thereby diminished. The defendants deny the existence of the windows for over the statutory

period and contend that the plaintiff suffers no substantial privation of light and air and that their act does not amount to an actionable nuisance.

The trial Judge found that the three windows were in existence for over the statutory period. It may here be noted that the learned Judge made a

personal inspection of the premises on several occasions. He held on the evidence adduced, that there is no such diminution of light and air as to

amount to a nuisance. As regards'' the westernmost window there is admittedly no obstruction. With respect to the middle window the Judge

found that by reason of the roof of the defendants hanging over a portion of it there is no such diminution as to cause serious discomfort or to

render the plaintiff''s house uninhabitable. As for the easternmost window it is not disputed that it is completely blocked up. But the learned Judge

found that the plaintiff receives sufficient light and air from other sources and holds that even if the easternmost window is closed up, the plaintiff

cannot succeed as there is no substantial damage.

I agree with the findings of the lower Court. But the real question to be decided is whether under these circumstances the plaintiff has any cause

of action against the defendants. Section 33 of the Indian Easements Act (V of 1882) which deals with disturbance of easements, runs as follows:

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...is substantial damage within the

meaning of this section.

Explanation II. - Where the easement disturbed is a right to the free passage of light...no damage is substantial within the meaning of this section,

unless it falls within the first explanation or....

Explanation II above says that in respect of an easement of light, damage is substantial if it falls within Explanation I which provides that the

doing of any act likely to injure by affecting the evidence of easement is substantial damage. The principle underlying Explanation I is that any act of

the defendant which affects the evidence of easement is enough to sustain an action though the plaintiff does not suffer actual damage. In other

words there is a wrongful act for which an action lies. In Esa Abbas Sait v. lacob Haroon Sait (1909) 20 M.L.J. 291 : ILR 33 Mad. 327, a bench

of this Court laid down at p. 332:

There can be no doubt that in the present case, the act done by the defendants is likely to injure the plaintiff by affecting the evidence of the

easements.

Goddard in the Law of Easements (8th Edition) at page 410 says:

Generally the law will allow presumption of damage to be made in the case of alleged disturbance of easements as distinguished from natural rights,

although no actual damage has resulted to the dominant owner, because any disturbance of an easement must be an injury to the right of the owner,

as it tends to call his right in question and afford evidence thereafter in derogation of his title.

The learned author notes the case of Bomer v. Hill 1 Scott. 526 where the plaintiff''s right of way along a stream was obstructed by the

defendant who put up a tunnel and it was held that:

Though the plaintiff received no damage, his right to the way is injured and if acquiesced in for over 20 years it would become evidence of

renunciation and abandonment of the right.

Jones in Law of Easements at page 701 observes as follows:

Damages are presumed to have resulted from the violation of the right. The disturbance of the easement is in derogation of the title of the dominant

owner; and although he has suffered no actual injury he may maintain action to vindicate his title and have a judgment for nominal damages.

In the present case though the defendant''s action did not cause actual damage to the plaintiff yet the closing of the eastern window constitutes an

invasion of the plaintiff''s easement; and on the principles stated above, the plaintiff has a right of action against the defendant.

The next question is as to the relief which the plaintiff is entitled. Section 35 of the Act provides that an injunction may be granted subject to the

provisions of the Specific Relief Act. Having regard to the facts of this case I am inclined to award Rs. 150 as damages to the plaintiff. This sum

will carry interest at 6 per cent, per annum from the date of the plaint until payment. In other respects the appeal is dismissed. Each party will bear

his or her own costs throughout.