Norman Macleod, Kt., C.J.
1. The question on this application is whether the respondents, who lost on the appeal to this Court, are entitled to a certificate that this is a fit case to grant leave to appeal to the Privy Council. The subject-matter of the suit was a olaim to an easement of light and air through two small windows in the respondent's cook-room. Admittedly, if an attempt were made to value the easement, it would not amount to Rs. 10,000. But it was argued on the previous hearing before us that, although the value of the easement may perhaps be less than Rs. 10,000, the suit involves a claim or question to or respecting property of the value of over Rs. 10,000. Therefore, we directed further affidavits to be filed with regard to the valuation of the premises in which the windows were situated. At that time the case of De Silva v. De Silva (1904) 6 Bom. L.R. 403 was not cited to us. In that case there was an application for leave to appeal to the Privy Council on the ground that although the plaintiff did not claim to be entitled to property of over Rs. 10,000 yet he claimed to be entitled to a third share of the property which was over Rs. 10,000. That argument was rejected by Sir Lawrence Jenkins, and the learned Chief Justice said :
If we were to give effect to the contentions urged before us it would follow that if the sole subject-matter in dispute were an easement of trifling value, but affecting property worth Rs. 10,000 or upwards then a right to appeal to His Majesty in Council under the civil Procedure Code would exist.
2. It may be that this expression of opinion on that occasion is obiter, but it certainly agrees with the opinion I formed on the last occasion when this matter was before us, and we are prepared to hold that in the case of an easement of trifling value there is no right of appeal although it affects property worth over Rs. 10,000. Then the question is what is the value of the easement for the purposes of an appeal to the Privy Council. Here admittedly the easement, if it were valued, would fall much below the sum of Rs. 10,000. But on the other question the respondents must fail because they have not satisfied us that the property in respect of which the easement is claimed is over Rs. 10,000. They have filed an affidavit by their Architect Mr. Bhedwar who has taken estimates of the coat of the whole of the range of the out-houses in which the kitchen is situated at present prices. Apart, from the question whether the present day rates would be a proper measure for estimating the value of the building, it seems to us that it is not open to the respondents to value the whole of the range of the out-houses. Again, the value of the property cannot be for the purposes of this application the sum which it would cost to erect a totally new range of out-houses. Admittedly those out-houses are of considerable age, and, taken as they stand, they certainly would not be worth Rs. 10,000. But if we consider the kitchen only in which the windows are situated, then admittedly the value would fall below Rs. 10,000. The result must be that on both these grounds the application fails and must be rejected with costs.