(1) These two appeals raise common questions of law and fact. Hence they could be conveniently dealt with in one judgment as has been done in the Courts below.
(2) To bring out the points in controversy debated before this Court, it is necessary to briefly state the material facts. The dispute relates to the plot marked ABCD in the eye sketch annexed to the plaint; it belongs to the Government and it is an open space. The two plaintiffs are owners and occupiers of premises adjoining this plot of land. The defendant has attempted to put up a building in this open space and the plaintiffs-appellants state that the building that he (defendant) proposes to put up would cut off completely the lateral light and air to the premises occupied by them and thus cause substantial injury to them. They also complain that the proposed building would obstruct the right of way that they have acquired over the said plot.
(3) The Courts below have concurrently come to the conclusion that the plot ABCD is Government land. It is not proved that the defendant had acquired any title to the land in question. Nor is he a lessee or a licensee under the Government. The contention of the defendant that he has been allowed by the Municipality representing the Government to make use of the land is not proved. This contention evidently was advanced on the ground that the Municipality had approved the plan submitted by him for putting up a building in the plot in question. Approval of the building plan does not amount to a granting of license to occupy the plot in question. Nor is it proved that the Municipality had any authority to grant any license to the defendant to occupy the land in question. On proved facts it is clear that the defendant is a trespasser.
(4) The first appellate Court did not make any distinction between the plaintiffs' claim of easementary right of way and their claim in respect of light and air. It proceeded on the basis that the plaintiffs were bound to acquire both these rights as prescriptive rights. Evidently it was of the opinion that the plaintiffs have no natural right to get lateral light and air for the convenient enjoyment of their premises. Whether this is the correct view of the law is one of the questions that will have to be considered by this court. But before doing so, it is necessary to state that both the Courts below have proceeded on the basis that if the defendant puts up the proposed building it would substantially cut off lateral light and air to the premises belonging to the plaintiffs.
In the plaint the plaintiffs have stated that 'the attempted construction by the defendant on the plaint site ABCD is an invasion of plaintiffs' easementary right and will cause irreparable and irremediable damage to the plaintiffs. Any structures on the site apart from blocking plaintiffs' right of way for water carts, firewood carts, lorries carrying provisions etc., will block all light and air through the two doors X and Y and will impair the health, sanitation of the residents and impair materially the value of the plaintiffs' building and infringe on the convenient and legitimate enjoyment of the building by plaintiff and his tenants.'
These allegation have not been specifically controverted in the written statement filed by the defendant. No doubt he has generally denied the plaint allegations as regards the plaintiffs' right sot get the reliefs prayed for. No issue was raised to get the reliefs prayed for. No issue was raised as regards the extent of damage that is likely to be caused to the plaintiffs' premises by the construction of the proposed building. The Courts below have proceeded on the basis that damage that is likely to be caused is substantial.
(5) The Courts below have found that the plaintiff have enjoyed the rights claimed by them for a period of 52 years. In their view the plaintiffs have not perfected their rights as the proved enjoyment falls short of the statutory period. They were of the opinion that as the plot in question belongs to the Government the plaintiffs can acquire the rights claimed by them only if they had enjoyed the same for a period of 60 years or more prior to the institution of the suits under appeal. They also held that the enjoyment which has not ripened into a right is no right at all and gives no cause of action to the plaintiffs to restrain the defendant, a trespasser, from interfering with their enjoyment.
(6) It is necessary to separate the plaintiffs' claim regarding the right of way from their claim to get lateral light and air. So far as the right of way is contended it can only be acquired by prescribing for the same as contemplated by law. In other words it can only be a prescriptive right. At this stage it may be noted that it is not the case of the plaintiffs that there is no other access to their premises, and hence they cannot put their claim on the basis of easement of necessity. The scope and limits of a claim for a right of way came up for consideration before a Full Bench of the Madras High Court in Chinatalapati Venkatanarasimharaju v. Surisetti Ramaswami, AIR 1941 Mad 176. The learned Chief Justice speaking for the Full Bench observed that:
'A person who has been using a particular way over land adjoining his, but for less than the prescriptive period cannot in ordinary circumstances maintain an action to prevent a stranger from obstructing him using the way. Such an action can only be maintained where the obstruction to user has the effect of substantially depriving the person using the way of the enjoyment of his property.'
Decisions and text books have made distinction between a claim relating to a right of way and a claim relating to light and air. We shall consider this aspect a little later. At this stage suffice it to say that no decision has been brought to my notice wherein it has been held that a right of way can be claimed or enforced in any manner other than as a prescriptive right, be it against the owner of the servient tenement or against a trespasser.
It is urged on behalf of the appellants that on a proper appreciation of the evidence on record it will be seen that they have established their claim. On their behalf it is complained that the Courts below took a wrong view of the law in holding that the plaintiffs had to strictly establish sixty years enjoyment of the rights claimed, even as against the defendant. In this connection assistance was sought from the decision in Jehangirji Jamshedji v. Nariman Burjorji, : AIR1953Bom318 . On the basis of that decision it is contended that when at the date of suit the property over which the easement is claimed, belongs not to the Government but to a private individual either by transfer or otherwise from the Government the period prescribed under S. 15 of the Easements Act for establishing easement right is 20 years and not 60 years, and a person claiming the right as against the transferee from the Government can take the benefit of the period of user as against the Government for establishing his claim against the transferee. On this point judicial opinion is divided.
The Madras High Court in Srinivas Upadya v. Ranganna Bhatta, AIR 1918 Mad 120 and Allahabad High Court in Lalit Kishore v. Ram Prasad : AIR1943All362 have taken the view that the words 'belongs the Government' in the last paragraph of S. 15 refer not to the time of suit but to the time during which the easement is enjoyed. It was opined that a person who had begun a period of prescription against the Government might continue the Period as against the Government's transferee as such. But a person who was in the process of prescribing against the Government cannot complete his right unless he had enjoyed the same for sixty years on the whole against the Government and its transferee or exercised that right for twenty years as against the transferee.
A contrary view was taken by the Lahore High Court in Gokal Chand v. Kishori Lal, AIR 1942 Lah 123 and by the Bombay High Court in : AIR1953Bom318 . In the present case it is unnecessary to resolve this conflict. From the facts mentioned earlier it is clear that the Government is still the owner of the property and the defendant is a mere trespasser and has acquired no title to the suit property.
The servant tenement in this case being the land belonging to the Government, the plaintiffs cannot be held to have acquired any right. However long their enjoyment of the rights claimed may be if it falls short of the statutory period it is no right at all. It is still a trespass. Moreover the Government not being a party to the present proceedings, this Court is not in a position to give any effective relief to the plaintiffs as regards their claim relating to the right of way. Courts do not give ineffective decrees.
(7) It is next urged relying on the decisions in Alagasinga Bhattar v. Taluq Board, Rajamundry, 16 Ind Cas 626(Mad) & Venkatarama Iyer v. Secy. of State, ILR 33 Mad 362 that once the plaintiffs establish by them for a period of 52 years, the onus is on the Government to prove that their enjoyment fell short of the statutory period. All that need to be said as regards this contention is that the Government is not before the Court to prove or disprove anything even if it is considered that the facts of this case give rise to any presumption as claimed by the plaintiffs. Hence the plaintiffs' claim relating to the right of way has to fail.
(8) This takes us to the question whether the plaintiffs' claim to lateral light and air is sustainable.
(9) On the findings of the Courts below it can be reasonably concluded that the plaintiffs are likely to be substantially deprived of the light and air that they have been getting up till now, if the proposed construction is put up. As held earlier the plaintiff have not proved that they have enjoyed these rights for the full statutory period. Hence they cannot claim any prescriptive right in respect of the same. If at all they can succeed, it must be only on the basis that they have a natural right to get the light and air claimed and the defendant's threatened action amounts to a nuisance. Can the plaintiffs substantiate their case on the basis of any natural right? Pandurang Rao J. in Mahaboob Khan Sahib v. B. Govindarajulyu Naidu, : AIR1936Mad142 observed:
'The law does not know of any natural right apart from a right of easement with reference to a right of passage or right to light and air. No one can claim any natural right against another unless the establishes an easement to that effect.'
In that case the observation relating to light and air is obiter, as that question did not arise for determination. The observation in question appears to be a wide statement of the law and cannot be said to be accurate. Gobbard in The Law of Easements, Eighth Edition, at page 472, observes:
'It may be taken, then, as settled law, that an owner of buildings cannot maintain any action for removal of support against the owner of the adjacent or subjacent soil, until he has acquired a right to support for his buildings. This, however, is not the case if a wrong doer--a person who has no right in the soil--interferes with it, and by removing the support causes the buildings to fall, for, in such case, as action will lie against him at the suit of the owner of the damaged buildings, even though the latter has not acquired any right to support.'
According to the learned Author the right to lateral support is analogous to the right to get light and air. This is also the view taken by peacock as seen in his Law relating to Easements in British India. Third Edition. At page 607 he observes :
'Although before a prescriptive right is acquired there is no cause of action against the owner of the servient tenement or his licensee for disturbance of the incomplete right, except on the ground of negligence, it appears that there is a remedy against a trespasser or wrong-doer who is guilty of such disturbance.
Thus the de facto support of a house by the soil of a neighbour is sufficient title against any one but that neighbour, or one claiming through him.
Just as one who should prop his house up by a shore resting on his neighbour's ground, would have a right of action against stranger, who, by removing it, causes the house to fall; but none against his neighbour, or one authorised by the neighbour to do so, if he took it away and caused the same damage.
Similarly the obstruction of light and air before the acquisition of the prescriptive right may be actionable if caused by a trespasser.'
The legal position as explained above is supported by English and Indian decisions and the same may be taken as well established.
(10) The leading English case on the point is Jeffries v. Willams, 91850) 5 Ex 792 : 155 ER 347. In that case Parke B. observed :
'If a house is de facto supported by the soil of a neighbour, this appears to us to be sufficient title against any one but that neighbour, or one claiming under him. Just as one who should prop his house up by a shore resting on his neighbour's ground, would have a right of action against a stranger, who, by removing it, causes the house to fall; but none against his neighbour, or one authorised by the neighbour to do so, if he took it away and caused the same damage.'
This decision appears to have been uniformly followed in English Courts. In Elizabeth Bibby v. Carter, (1859) 157 ER 795, Watson, B. said :
'The law has been distinctly laid down in the case of Jeffris v. Williams, (1850) 5 EX 792 : 153 ER 347, and it would be mischievous to disturb it we ought not to leave matters at large where there have been decided cases, but abide by them.'
To the same effect is the opinion expressed in that case by Pollock, C. B. Martin, B., and Channell, B.
(11) Now coming to the Indian decisions on the point, the earliest case that was brought to my notice is Jootoor Acchanna v. Vanamala Venkamma, 5 Mad LJ 24. In that case it was held that a plaintiff who received light through a window in his wall opening on a vacant ground but did not enjoy it for the prescriptive period so as to acquire a right of easement, was still entitled to an injunction against a stranger who was not the owner of the ground or one deriving title from him, restraining him from building upon that ground so as to cause obstruction to the light.
This view was followed by the same High Court in Kondapa Rajan Naidu v. Devarakonda Suryanarayana, ILR 34 Mad 173. The same question came up for consideration before Ramaswami J. in Moidin Kunhi v. Gopalkrishna., : AIR1953Mad849 . His Lordship observed that the right to light and air may be either a natural right forming one of the incidents of property or it may be an easement. If it is acquired as an easementary right then it is good both against the entire world. But if it is claimed as a natural right, it can be enforced only against strangers. In Venkatanarasimharaju's case AIR 1941 Mad 176(FB), Leach C.J. accepted the correctness of the proposition of law enunciated above.
The Madras High Court have consistently taken the view that a person complaining infringement of his right to get light and air can maintain an action against a stranger even though he has to acquired any easementary right in respect of the right claimed if the deprivation alleged or anticipated is substantial. Similar is the view taken by the other High Courts. In Dhuman Khan v. Mohammad Khan, ILR 19 All 153, the Allahabad High Court was inclined to take the view that the owner of a house has a right of action against a stranger who had obstructed the light coming to his house by putting up an erection upon the adjoining land, even though the owner in question had not prescribed for that light. The Calcutta High Court in sarojini Devi v. Krista Lal Haldar AIR 1923 Cal 256, took the same view. No case taking a contra view has been brought to my notice.
(12) On a review of the case law on this point it is clear that the Courts in this Country always taken the view that house owner has a natural right to get lateral light and air from the neighbouring land but that right can be enforced only against a stranger i.e., a person having no right to interest in adjoining land. This position appears to be well established. As observed by Watson B., in Elizabeth's case, (1859) 157 ER 795, it would be mischievous to disturb it.
(13) From the facts found in this case, it is clear that the proposed erection by the defendant would amount to a nuisance so far as the plaintiffs are concerned as it is likely to cut off substantially light and air coming to their premises, and this impair the utility of those premises. Hence the plaintiffs are entitled to the protection sought.
(14) What is the relief that the plaintiffs are entitled to in these appeals? In have earlier held that they are not entitled to the right of way claimed by them. Hence the relief prayed for regarding the right of way claimed has to be refused and the decrees of the lower Courts in that respect confirmed. But they are entitled to get an injunction restraining the defendant from putting up a structure in the suit schedule property in such a way as to substantially obstruct the light and air that is being received by their premises at present.
The plaintiffs have no right to object to the defendant putting up a building or any other structure in the suit schedule land. But the building or the other structure put up by him should not substantially cut off the light and air that is being received by the plaintiffs' premises. Hence in modification of the decrees of the Courts below, an injunction will be issued restraining the defendant from putting up any building or structure in the suit property (plot ABCD in the eye sketch) which might substantially cut off light and air that is at present received by the plaintiffs' premises. In this case the parties have partly succeeded and partly failed. Hence they will bear their own costs throughout.
(15) Appeal partly allowed.