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Rajubhai Mohanbhai Vs. Lalbhai Mulchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 389 of 1924
Judge
Reported in(1926)28BOMLR1000; 97Ind.Cas.691
AppellantRajubhai Mohanbhai
RespondentLalbhai Mulchand
DispositionAppeal dismissed
Excerpt:
easement-light and air-windows opened in a joint wall-prescriptive right to light and air through such windows.;easement of light and air through windows opened in a joint wall can-not be acquired by prescription.;imambhai v. rahimbhai (1925) 27 bom. l.r. 503 followed. - - 1. the plaintiff filed this suit to obtain an injunction restraining the defendants from raising any construction over the chora or open space to the south of his wall thus necessitating the closing of any jalis or windows or stopping the mori mentioned in the plaint, the plaintiff failed to prove that the wall to the south of his house was of his exclusive ownership......to the full ownership of this wall and the plaintiff, after the fire in 1884, repaired the party wall with the consent or acquiescence of the defendants, then the result would be, as was decided in imambhai v. rahimbhai : (1925)27bomlr503 that where one of two neighbouring owners raises a party wall, the other owner either giving his consent or acquiescing, the raised portion of the wall assumes the same character as the old party wall on which it stands. if the plaintiff opened appertures 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.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit to obtain an injunction restraining the defendants from raising any construction over the chora or open space to the south of his Wall thus necessitating the closing of any jalis or windows or stopping the mori mentioned in the plaint, The plaintiff failed to prove that the wall to the south of his house was of his exclusive ownership. The first Court has found that it was a joint wall and both parties are entitled to its equal user. The trial Court dismissed the suit, The appellate Court considered that the , plaintiff had proved that all his windows and openings, except a jali in the wall on the ground floor, were of over twenty years' standing, and, therefore, the appellant was entitled to a legal easement entitling him to an injunction against the respondents from obstructing or interfering with the light and air to these openings and the discharge from the mori.

2. 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 and the plaintiff, after the fire in 1884, repaired the party wall with the consent or acquiescence of the defendants, Then the result would be, as was decided in Imambhai v. Rahimbhai : (1925)27BOMLR503 that where one of two neighbouring owners raises a party wall, the other owner either giving his consent or acquiescing, the raised portion of the wall assumes the same character as the old party wall on which it stands. If the plaintiff opened appertures 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.

3. The plaintiff, therefore, was not entitled to the injunction sought for in the plaint, and the cross-objections filed by the respondents must be allowed and the suit dismissed with costs throughout.


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