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Sarubai Kom Jitmal Vs. Bapu Narhar Sohoni - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom660
AppellantSarubai Kom Jitmal
RespondentBapu Narhar Sohoni
Excerpt:
easement - light and air. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. .....the defendant's new structure has closed up. the light and air were there, no doubt, before the wall was built, but there was no appropriation of them, nothing done in reliance on their continued access, in accordance with the provisions of the law, which in such cases allows a right to be created by user and enjoyment as conducive to the general convenience and improvement. the appropriation began no earlier than the wall was built, which was eight years ago at most; and, until the lapse of time should convert the plaintiff's actual enjoyment into a right to its continuance, the defendant had an actual right to build on a space that belonged to her. this she has done. the plaintiff in consequence sustains an inconvenience, but one of which he took the risk when he made his window.....
Judgment:

West, J.

1. The District Judge says that 'the easement... in the matter of air and light existed before the portions of the wall were erected', i.e., the portions between which is the window which the defendant's new structure has closed up. The light and air were there, no doubt, before the wall was built, but there was no appropriation of them, nothing done in reliance on their continued access, in accordance with the provisions of the law, which in such cases allows a right to be created by user and enjoyment as conducive to the general convenience and improvement. The appropriation began no earlier than the wall was built, which was eight years ago at most; and, until the lapse of time should convert the plaintiff's actual enjoyment into a right to its continuance, the defendant had an actual right to build on a space that belonged to her. This she has done. The plaintiff in consequence sustains an inconvenience, but one of which he took the risk when he made his window without an agreement as to the defendant's use of her contiguous property. The defendant had so far the same right as the plaintiff, and could not be prevented from exercising that right to build, by the mere circumstance that the plaintiff had built first.

2. We must, therefore, reverse the decree of the District Judge and reject the plaintiff's claim, with costs throughout on the respondent.


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