Sukhadev Rathi and another vs Jupudi Rukminamma

Venkateswara Rao

This appeal is directed against the decree and Judgment in A.S. No. 44 of 1964 on the file of the Principal Subordinate Judge, Vijayawada, by which the decision in O.S. No. 129 of 1962 on the file of the District Munsif of the same place was reversed, Defendants in the suit are appellants. The respondent, Rukminamma, filed O.S. No. 126 of 1962 in the court of the District Munsif, Vijayawada for a perpetual injunction restraining the appellants (Defendants) from raising certain structures in their site described by the letters E F G H in the Plaint Plan alleging that the said structures, if allowed to be constructed would have the effect of of invading her easement right of receiving light and air through the window ''W'' of one the four rooms in her house shown by the letter ABCD in the same plan. The defendants resisted the suit contending inter alia that the plaintiff is not entitled to the right of easement claimed by her as the window in question was always kept closed and that she in any view, not entitled to sue for an injunction as the structures put up by them do not in any way hinder the passage of light and air through the window in question, Subsequent to the institution of the suit, the Plaint was amended so as to include a prayer for a mandatory injunction alleging that the defendants put up certain structures in their site in defiance of the temporary injunction granted against them soon after the suit was filed.

The trial court non-suited the plaintiffs having accepted the stand taken by the defendants that the plaintiff never enjoyed the easement right in question as the window ''W'' of the Plaint Plan was always kept closed on account of the fact that there used to be a boiler in the defendant''s site and adjacent to the window in the plaintiff''s northern wall. On appeal, however, the learned Subordinate Judge held that the plaintiff acquired a prescriptive right for the free passage of light and air through the window ''W'' having enjoyed the same for over the statutory period, that the structures put up by the defendants in then site had the effect of obstructing the free passage of air and light to her house and that she is therefore entitled to the relief of injunction sought for. He accordingly allowed the appeal and decreed the suit by granting a mandatory injunction directing the defendants to demolish the offending structures. Aggrieved by this decision, the defendants have preferred this second appeal.

A B C D of the Plaint Plan is the house belonging to the plaintiff and it consists of four rooms in a row. There is a window indicated by the letter ''W'' in the plaint plan, in the northern wall of the second room belonging to the Plaintiff. The site E F G H which adjoins the Plaintiff''s house in its north purchased by the defendants in the year 1961. It is also not disputed that there used to be a factory in the site that was purchased by the defendants in the year 1961. The lower appellate Court found on the basis of the evidence available on record that the house of the plaintiff has been in existence for over 30 years by the date of the suit, with the window ''W'' in the northern wall of one of the rooms in her house, in this second appeal.

So, the only other question that survives for consideration is as to whether the plaintiff is entitled to the mandatory injunction sought. The defendants have constructed a double storeyed building in their site, leaving a space of about 6-1/2 feet in between the northern wall of the plaintiff''s house and the southern wall of their house. It is also common ground that the landing of the stair-case put up in the newly constructed building of the defendants stands on the same level as the aperture W and that the southern wall of the building itself is about 20 feet in height from the ground level. The question now is whether the southern wall of the house of the defendants has the effect of interfering with the easement right acquired by the plaintiff and is consequently actionable. Section 33 of the Indian Easement Act lays down that the owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the distrubance of the easement or any right accessory thereto; provided that the distrubance has actually caused substantial damage to the plaintiff. What is substantial damage is explained in Explanations II and III to the section Explanation II reads that where the easement disturbed is a right to the free passage of light passing to the openings in the house, no damage is substantial within the meaning of this section unless it falls within the first explanation, or interfered 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 enacts that 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 the is section if it interferes materially with the physical comfort of the Plaintiff, though it is not injurious to his health. It is abundantly clear from the language used in the section and the explanations thereto that no damage in the case of an easement right to free passage of light and air is actionable unless it is substantial and has the effect of materially interfering with the physical comfort of the plaintiff though not injurious to her health. That this is the object of the section has also been recognised in a series of decisions. It was indicated by their Lordships of the Privy Council in PCS Paul v. Robsbn AIR 1914 P.C. 45 that the single question incases pertaining to alleged invasion of easement rights is whether the obstruction complained of is a nuisance. It was held in Musammat Chandan Kunwar Vs. Narain alias Girdhari, that there is no rule defining the measure of the dominant owner''s right of requiring an angle of 45 degrees through which the rays of the sun are to be received : and that the principle laid down by the House of Lords is that there must be a substantial prevention of light enough to render the occupation of the house uncomfortable according to ordinary notions Ramanujalu Naidu v. Aparanji Ammal 21 M.L.J. 313 is another authority for the proposition that to constitute an actionable obstruction of ancient tights, it is not enough that the light is less than before but that there must be a substantial deprivation of light enough to render the occupation of a house uncorafortable according to the ordinary notions of mankind. Veerappa Mallappa v. Nagappa Fakirappa AIR 1965 Mys.292 is yet another authority for the proposition that no action can be maintained either for compensation under S. 33 or for injunction under Sec. 35 unless it is established that the interference complained of results in substantial injury in a claim for compensation or amounts to nuisance in a claim for injunction and that the right to light in truth is no more than a right to be protected against a particular form of nuisance and no action against the defendant can be maintained unless the obstruction amounts to actionable nuisance. It can be gathered from all these decisions that the emphasis is thus on the effect and result of the alleged obstruction and not mere form of obstruction. If the passage of light and air is obstructed as a result of the putting up of certain structures by the defendants, that does not by itself given rise to a cause of action to the plaintiff and the plaintiff should go farther and prove that the act of the defendants has resulted in substantial damage to him in the matter of enjoying the premises. The learned Subordinate Judge was conscious of the fact that this is the correct position of law as he referred to a number of decisions bearing on the question in his judgment. Ammani Ammal v. Ranganayaki Ammal AIR 1926 Mad. 898 which is one of the decisions referred to in his Judgment pertains to a case where the windows of the plaintiff were blocked up rendering his house almost uninhabitable and it was therefore held that it is a fit case for a permanent injunction, AIR 1924 97 (Lahore) referred to by the learned Subordinate Judge does not apply to the facts of this case as the question that arose for consideration there was as to whether compensation in money would be an adequate remedy if the injury suffered by the Plaintiff on account of obstruction to free access of light and air was of a serious character. The question as to what type of invasion would give rise to a cause of action to sue for an injunction did not come for condsideration there. Bearing the principles enunciated in the several decisions referred to above that mere obstruction to the passage of light and air is by itself not actionable unless it results in substantial damage or privation to the plaintiff, we have to examine whether the court below was justified in directing the issuance of a mandatory injunction as prayed for by the Plaintiff.

Sri Rajeswara Rao, the learned counsel for the appellants vehemently argued that the learned Subordinate Judge, while setting out the law correctly failed to apply it properly and that this has led to a decision which is contrary to law. Besides referring to the obstruction caused by the structures put up by the defendants to the passage of light and air through the aperture "W" the learned Subordinate Judge did not say anything in his judgment to indicate that this obstruction has resulted in substantial injury or damage to the plaintiff in the matter of enjoying the dominant tenement. His judgment would, on the other hand, lend support to the contention urged for the appellants that he did not record any finding on the question as to whether the obstruction said to have been caused by the defendants had the effect of causing substantial damage to the prointiff. It will be useful to reproduce certain passages from the Judgement of the lower appellate court in this context for the purpose of appreciating the respective contentions.

It would be clear from the Commissioner''s report and the plan attached to his report that there is no complete block to the light and air or complete obstruction of light and air to the window ''W''..............

The Commissioner''s report and plans Exs A-5 to A-8 and also the notes of local inspection of the learned Munsif would show that the constructions made by the defendants cause obstruction to the free flow of light and air through the plaintiff''s window though it does not completely block the light and air............From the notes of inspection and the Commissioner''s reports it is clear that there is diminution of light and air to the wall of the defendant''s building being raised to a height of 15 feet from the level of the window.......

I find that as there is diminution of light by reason of obstruction caused by the defendant constructing a building, the obstruction itself per-se is actionable and it follows that the plaintiff is entitled to the injunction prayed for........

It is therefore clear that the learned Subordinate Judge was of the opinion that mere obstruction regardless of the consequence or the result produced by it in relation to the enjoyment of the casement by the Plaintiff is sufficient to sustain an action for injunction when the fact there is a long catena of decisions laying down the uniform principle that mere obstruction to the passage of light and air without at the same time causing substantial injury to the owner of the dominant heritage in the matter of enjoying the same is not sufficient to sustain an action for injunction.

The learned counsel for the respondent referred me to certain observations contained in the report of the Commissioner, who appears to have visited the Plaintiff''s building thrice the same day in the morning, noon and evening, to contend that the erection of a wall by the defendants, though in their site, had the effect of rendering the plaintiff''s house uninhabitable. As already stated, the window which is the source of light and air for the plaintiff faces north. The Commissioner observed in para 9 of his report that when he inspected the premises of the Plaintiff at 8 A.M. on 16-1-1963 and again at 5 P.M. the same day the room was dark as the light passing through the Ventilator was very feeble but that when he visited the house again at 2 p.m. the same day he found that there was some light in the room and that light was far better than the light available in the morning. I am afraid that this report doss not at all justify the contention that the construction of the wall by the defendants had the effect of rendering the house of the Plaintiff less comfortable or uninhabitable and thereby exposed her to substantial damage as there is nothing on record to show what exactly the condition of the house in the matter of receipt of light and air was prior to the date on which the defendants put up their house wall. The Commissioner''s report simply refers to the state of affairs on the date he visited the premises belonging to the plaintiff and he cannot be credited with any knowledge as to the quantum of light and air which a particular room in the house was receiving prior to the construction of the house wall by the defendants. So, the evidence furnished by commissioner''s report alone is not, in my opinion sufficient to have that the obstruction caused by the defendants to the passage of light and air to the plaintiff''s house is of such substantial character as to entitle the latter to maintain an action for injunction. The learned Subordinate Judge did not discuss the other evidence if any, on record in coming to the conclusion he did that the obstruction is actionable obviously because he was in the mistaken impression that mere obstruction, however negligible it might be, is per-se actionable.

In the absence of any finding by the learned Subordinate Judge that the erection of structures by the defendants intheir site interferes materially with the physical comfort of the plaintiff or prevents her from carrying on the accustomed business in the dominant heritage though it is not injurious to her health it is not possible to sustain his decision that the Plaintiff is entitled to a mandatory injunction. It is therefore necessary that the matter should go back to the lower appellante Court for recording a finding on the question as to whether the construction of the alleged offending wall by the defendants has the effect of causing substantial damage to the dominant heritage by interfering materially with the physical comfort of the plain tiff and rendering the premises less comfortable or uninhabitable. In the result, therefore, the decree and judgment of the court below are set aside and the case is remanded to it for fresh disposal in the light of the observation contained above and on the evidence available on record. Costs of this appeal will abide the result of that appeal after remand and will be provided for in the decree of the court. The Court Fee paid on the memorandum of appeal will be refunded.