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Bai Kashibai Vs. Purshottam Keshavji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 97 of 1922
Judge
Reported inAIR1923Bom196; (1923)25BOMLR239
AppellantBai Kashibai
RespondentPurshottam Keshavji
Excerpt:
quia timet action - easement-light and air-ancient windows-apprehended obstruction-decree, form of-injunction-civil procedure code (act v of 1908), schedule d., form no. 15.;in a quia timit action, once the plaintiff establishes that his windows are ancient and the defendant by the proposed building threatens to disturb his easements, he is entitled to an injunction with regard to the windows which have been held to be ancient. it will depend upon the future action of the defendant whether the injunction has been disobeyed.;the form of injunction given in form, no. 15, appendix d, of the civil procedure code, is not appropriate as expressing what the court should direct if the plaintiff succeeds in a quia timet action, in view of the provisions of the indian easements act.; hence, where..........of the plaintiff's easements of light and air across the defendant's premises enjoyed by the ancient windows referred to in the plaint the trial court granted a decree and declared that the windows in the south wall of the plaintiff's premises mentioned in the plaint and shown in the plan annexed as ex. c to the plaint were ancient windows and that the plaintiff was entitled to an easement of light and air for his premises over and across the defendant's premises mentioned in the plaint save so far as the same was obstructed by the defendant's old building also mentioned in the plaint and showed by a white broken line in the said plan. then an injunction was granted against the defendant from erecting or continuing to erect or maintaining erected upon her premises mentioned in the.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is a quia timet action filed by the plaintiff as owner of a property in Lalwady, Old Hanuman Cross Lane, Kalbadevi, asking for an injunction against the defendant from erecting or maintaining erected any building or erection on her premises mentioned in the plaint so as to cause a disturbance of the plaintiff's easements of light and air across the defendant's premises enjoyed by the ancient windows referred to in the plaint The trial Court granted a decree and declared that the windows in the South wall of the plaintiff's premises mentioned in the plaint and shown in the plan annexed as Ex. C to the plaint were ancient windows and that the plaintiff was entitled to an easement of light and air for his premises over and across the defendant's premises mentioned in the plaint save so far as the same was obstructed by the defendant's old building also mentioned in the plaint and showed by a white broken line in the said plan. Then an injunction was granted against the defendant from erecting or continuing to erect or maintaining erected upon her premises mentioned in the plaint any house, building or erection of a greater height than the building which formerly stood upon her premises and which had been recently pulled down so or in such manner as to darken, injure or obstruct the windows of the plaintiff marked 6, 7, 8, 10, 11, 12, 13, and 14 in the said plan save and so far as the same were obstructed by the defendant's old building.

2. The defendant has appealed against the decision of the learned Judge who found against her on all the issues. It has not bean contended before us that the plaintiff's windows were not ancient; it was only suggested that the easement of light and air enjoyed previously by some of the windows might not be materially affected if the defendant built according to the proposed plan. It is not necessary, however, to enter upon such details in this case, for once the plaintiff establishes that his windows are ancient and the defendant by the proposed buildings threatens to disturb his easements, then he is entitled to an injunction with regard to the windows which have been held to be ancient and it will depend upon the future action of the defendant whether the injunction has been disobeyed. The defendant, does not mention in the memorandum of appeal that she objects to the form of the decree, but we think there is considerable substance in the objection which has now been raised. It is quite true that Form 15 of Appendix D of the Code of Civil Procedure is the form prescribed for a decree in a quia timet action asking for an injunction against a building higher than the old level. That form is the common form of injunction which has been used in England ever since the case of Yates v. Jack (1866) L. R. 1 Ch. 295, but it is obvious, when reference is made to the Indian Easements Act, that this form is not appropriate as expressing what the Court should direct if the plaintiff succeeds in a quia timet action Though the plaintiff may have an easement of light and air for all the windows which obtained light over the defendant's old buildings, he has no cause of action against the defendant unless she threatens to disturb his enjoyment of his easement. Therefore, if he succeeds in proving that, he is entitled to an injunction restraining the defendant from disturbing the easement, to the enjoyment of which he has been held to be entitled. By Section 32 of this Act the owner of a dominant heritage is entitled to enjoy an easement without disturbance by any other person. What amounts to an actionable disturbance is defined in Section 33 of the Act. When the defendant is so enjoined, it will depend upon the future character of his building whether he has disobeyed the injunction in such a way as to give rise to a right of action. In the case of Colfa v. Home and Colonial Stores, Limited [1904] A.C. 179 Lord Macnaghten pointed out that the common form of injunction which had been in use since the case of Yates v. Jack (1866) 1 L.R. Ch. 295 was not altogether free from objection. Their Lordships thought it better that the order when expressed in general terms should restrain the defendant from erecting any building so as to cause a nuisance or illegal obstruction to the plaintiff's ancient windows as the same existed previously to the taking down of the house which formerly stood on the site of the defendant's new buildings. If the decree stood as it has been drawn up, it might follow that if the plaintiff's ancient windows were in the slightest degree darkened, injured or obstructed by the defendant's new buildings, that would constitute a disobedience of the injunction, though it might obviously be no disturbance according to the provisions of the Indian Easements Act. The decree will, therefore, be amended by 'perpetually restraining the defendant from disturbing the easements to which the plaintiff is entitled in respect of the windows on the south walls of his premises mentioned in the plaint which were held to be ancient windows save in so far as they were obstructed by the defendant's old building.' There was no necessity to mention particular windows of those found to be ancient. They are all equally entitled to protection.

3. The appellant must pay the costs of the appeal.


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