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Ratanlal Bholaram Vs. Gulamhusen Abdulali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 286 of 1921
Judge
Reported in(1922)24BOMLR83; 67Ind.Cas.250
AppellantRatanlal Bholaram
RespondentGulamhusen Abdulali
DispositionAppeal dismissed
Excerpt:
.....the house was destroyed by fire :-;overruling the contention, that the plaintiff had acquired the right of easement for his windows by prescription.;where the owner of a building, who is in the course of acquiring a right of easement by prescription, has his house burnt down, but begins immediately to re-build his house and places the windows exactly in the same position as the old ones, he can bo regarded as enjoying the access and use of light! and air continuously, and he will be entitled to protection after twenty years from the first building. if, however, there is any delay in re-building, then that might be evidence of an intention not to resume the user. - - 5. in second appeal the appellants contend that the plaintiff had not peaceable enjoyment of the light and air which he..........both in 1888 and again still more conspicuously in 1895, as to prevent his acquisition of any right to light over the defendant's premises at all. that, i think, must depend upon the proper construction to be put upon section 3 of the prescription act, which refers to acquisition of rights of light, taken in connection with the decisions of the courts in respect of the matter. it is said that, except with regard to the term necessary for the acquisition of the right, the prescription act did not alter the law as it existed at the time the act was passed. i think that is probably true, but if so the act shows what the law at that time was, so far as the act purports to state anything in connection with it.7. then this is the important passage :-i do not think that any distinction can.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to restrain the defendants from bloking up certain windows of his house.

2. The defendants replied that the plaintiff had not acquired a complete prescriptive right to the light and air of the windows mentioned in the plaint, so that they were entitled to block up these windows.

3. The trial Court granted an injunction with regard to the windows of the western wall in the second storey of the plaintiff's house. An appeal from this decision was dismissed.

4. In the lower appellate Court the only question argued was whether the windows on the second storey of the plaintiff's house were built more than twenty years before August 1918 when the plaint was filed. Apparently the question whether the enjoyment of light and air had been continuous since the building of the second storey was not argued.

5. In second appeal the appellants contend that the plaintiff had not peaceable enjoyment of the light and air which he claimed as an easement for twenty years, on the ground that the building was burnt down in 1905 and rebuilt, so that during the period of rebuilding there were no windows with regard to which the use of light and air could be enjoyed. There does not appear to be any authority, strange to say, on this question. Admittedly, if the plaintiff had already acquired an easement of light and air for certain windows in the building before it was burnt down in 1905, and had rebuilt his house with windows corresponding with the old windows, he would be entitled to the same access of light and air as that enjoyed by the old windows. But in 1905 the plaintiff was in the process of acquiring an easement of light and air for these windows, and since peaceable enjoyment for twenty years is necessary, it is contended that during the period of re-building he could not have enjoyed the access or use of light and air to these windows. Section 15 of the Indian Easements Act says that the user must be peaceably enjoyed without interruption. But 'interruption' is defined in Explanation 2 and it is conceded by the appellants that the interruption in the user, owing to the building having been burnt down and having to be re-built was not an interruption within the meaning of the explanation, because the interruption to the user was not owing to the act of some person other than the claimant. The appellants' argument seems to be that the period of re-building ought to have been deducted from the period of user. But I do not think that this is correct. Either the period of re-building must be included in the twenty years, or the interruption in the user would stop time running in favour of the owner of the building, so that he would have to start afresh acquiring a right by prescription to an easement of light and air for the windows of the new house. Therefore this is a case, where, owing to an accident, the person who was endeavouring to aquire a right by prescription to an easement of light and air for the windows of his house was prevented during a short period from enjoying any light and air as there were no windows through which he could enjoy them.

6. The case of Andrews v. Waite [1907] 2 Ch. 500 may help us to decide this question, although the question there was whether the right to the access of light to a building which had been enjoyed through one window was preserved upon an alteration of the building. It was decided that the answer to that question depended on the identity of light, not on the identity of aperture. The Judge after setting out the facts said :

Has there been such an alteration of his [the plaintiff's] premises, both in 1888 and again still more conspicuously in 1895, as to prevent his acquisition of any right to light over the defendant's premises at all. That, I think, must depend upon the proper construction to be put upon Section 3 of the Prescription Act, which refers to acquisition of rights of light, taken in connection with the decisions of the Courts in respect of the matter. It is said that, except with regard to the term necessary for the acquisition of the right, the Prescription Act did not alter the law as it existed at the time the Act was passed. I think that is probably true, but if so the Act shows what the law at that time was, so far as the Act purports to state anything in connection with it.

7. Then this is the important passage :-

I do not think that any distinction can be drawn between what, in the way of alteration, involves the loss of the right to light when once indefeasibly acquired, and what is sufficient to prevent the acquisition of the right during the twenty years.

8. Therefore paraphrasing these words, non-user during the twenty years must be such non-user as would involve the loss of the right to light if it had been indefeasibly acquired. I may now refer to Goddard's Law of Easements (7th Edn.) at page 269 :-

Mere non-user will not, in every case, prevent acquisition of an easement; but, to have that effect, it must be coupled with some act indicative of an intention to abandon the claim, or it must be of such long continuance. and so constant, as to indicate an intention not to resume the user. Non-user, however, which would not prevent acquisition of an easement at common law, may often be sufficient to do so under the Prescription Act, which requires actual enjoyment for the full period.

9. I do not think that the last sentence in any way Weakens the effect of the last passage of the judgment in Andrews v. Waite, to which I have referred, because it is not necessary that there should be actual enjoyment of the right every moment of each twenty-four hours during the twenty years. I do not suppose that if the owner of a building, who was seeking to acquire a right by prescription to an easement of light and air for his windows, Went away for six months, and during that time the shutters of the windows of his house were closed, such non-user would stop time from running in his favour. It seems to me, therefore, that the question must depend very much on the facts of each case, and that if the owner of a building, who, in the course of acquiring a right of easement by prescription, is so unfortunate as to have his house burnt down, begins immediately to re-build his house and places the windows exactly in the same position as the old ones, it may be said that he has been enjoying the access and use of light and air continuously, and he will be entitled to protection after twenty years from the first building. If, however, there is any delay in re-building, then that might bo evidence of an intention not to resume the user.

10. The appeal, therefore, must be dismissed with costs.

Shah, J.

11. I agree.


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