1. These are cross appeals from an order of the Assistant Judge of Satara passed in appeal remanding the case for the determination of the fact of an easement claimed by the plaintiffs. The plaintiffs objected inter alia to the finding of fact that the wall through which the plaintiffs claimed an easement of light and air over the defendant's property for the benefit of their own house was a joint wall, and the defendant objected to the finding of law that it was possible for the plaintiffs to acquire an easement of light and air through the wall, having regard to the fact that the wall was a joint wall. The plaintiffs had sued for the establishment of an easement of light and air through windows which they had built in the wall intervening between their house and the defendant's land.
2. The trial Court, relying upon Rajubhai v. Lalbhai (1925) 28 Bom. L. R.1000 dismissed the suit simply on the ground that ' an easement of light and air through windows opened in a joint wall cannot be acquired by prescription,' The Assistant Judge who heard the appeal preferred to disregard this authority on the ground that it contained no discussion of the law ; and he held that the nature of the apertures, whether joint or even the exclusive property of the defendant, was of no consequence. For this he relied on Bass v. Gregory(1890) 25 Q.B.D. 481 but on reading that case I am unable to see how it supports the view of the learned Assistant Judge, since it only decides that in the special circumstances of Bass v. Gregory the plaintiff's right to light and air through a particular aperture could be presumed, and even that a lost grant could be presumed.
3. The question then is whether the Assistant Judge was right in refusing to accept the bald statement of law in Rajubhai v. Lalbhai. The difficulty in accepting it as authoritative lies in the fact that it is made without any clear expression of reasons. But upon a careful perusal of the case I have come to the conclusion that the learned Judges who decided it based their decision A.C.J. somehow upon the power of the defendant to resist the opening of the window. But they only said (p. 1002) :
There can be no question of easement as regards light and air in the case of joint property. Both parties were entitled to the full ownership of this wall... If the plaintiff opened apertures in the wall he could not acquire an easement of light and air through those windows over the defendants' premises. It would be open to the defendants to object to the windows being. opened, and even if they did not file a suit that would not prevent them from blocking the windows opened by the plaintiff so as to look over the defendants' premises.
4. There is no such word as ' since' or ' because' between the last two sentences; but the last sentence seems to be superfluous unless it serves as a reason for the first. But if it does serve as a reason for the first and means that there can be no easement through windows in a joint wall because the defendant could have sued to have them removed or could have blocked them up, then the statement of the law here given is in apparent conflict with the recognized principle that there can be no easement except from user which is capable of being resisted either physically or in the Courts. This is the principle enunciated in Sturges v.Bridgman (1879) 11 Ch.D. 852. cited by Mr. Justice Baker in Marghabhai v.Motibhai : AIR1932Bom513 .
5. We have then to decide the case on general principles. The case ofMarghabhai v. Motibhai affords a useful parallel. The plaintiff was there claiming a right to the free access of light and air for his house over a stranger's property. He had to prove that he had enjoyed lightand air for twenty years as an easement, and his difficulty was that between his tenement and the defendant's tenement there was an intervening strip of land over which light and air had indeed come to his house but which was owned not by the defendant exclusively but by him jointly with the defendant. It follows, therefore, that he enjoyed the light and air which came to him by virtue of his right in the intervening land as a joint owner and consequently did not enjoy it as an easement, since the essence of an easement is that it should be a right over property belonging not to the plaintiff but to someone else. The distinction between that case and the case with which we are now dealing is one of degree only. There the question was whether the plaintiff could get an easement through an intervening strip of land. Here the question is whether he can get an easement through an intervening wall. The principle is the same in each case, and I think, therefore, that the decision in Rajubhai v. Lalbhai is correct and must be followed, and that the trial Court was right in dismissing the suit.
6. The defendant's appeal No. 62 of 1935 must accordingly be allowed with costs. In view of this decision the plaintiff's cross appeal No. 78 of 1935 no longer survives for decision and is dismissed without costs.
7. The case is returned to the lower appellate Court for decision in accordance with this judgment.