1. The plaintiff has preferred this appeal against the judgment and decree of the Civil Judge of Mangalore, S.K. in Appeal Suit No. 33 of 1965 modifying the decree made by the Munsiff of Mangalore in O.S. 131 of 1962. The defendant has filed cross-objections questioning the correctness of the decree made by the lower court.
2. The plaintiff and the defendant are owners of neighbouring properties. The plaintiff in the first instance sought for a permanent injunction restraining the defendant from putting up any building without keeping an open space or at least 4 feet at the northern edge of his plot; and from disturbing or interfering with the right of the plaintiff to enjoy sufficient quantity of light and air through the windows of his building opening towards the defendant's premises.
3. Later, as the defendant had put up the structure on his premises, the plaintiff was permitted to amend the plaint by praying for a mandatory injunction directing the defendant to remove any superstructure put up within 4ft. of the northern edge of the defendant's premises. The trial court framed several issues in relation to the relief of permanent injunction. The learned Munsiff however decreed the suit as prayed for with costs.
It may be mentioned that the trial court granted the mandatory injunction even though no issue in regard to it is framed. The learned Civil Judge, on appeal, set out the points for consideration and the fourth point sets out the following:
'(iv) whether the defendant is liable for the demolition of the entire building or a portion of it?'
The learned Civil Judge dismissed the appeal modifying the decree of the trial court directing that a space of 4ft. is to be left open between the window W1 and the building of the defendant, and to do so the defendant should remove a portion of his building. The plaintiff who was aggrieved by this portion of the decree preferred this second appeal, while the defendant has preferred cross-objections questioning the correctness of the entire decree.
5. It is to be observed that both the courts have failed to consider the important question that arises in a case where the plaintiff seeks to exercise his easementaryright for access to light and air from the opening. A reference may be made in this connection to explanations II and III of Section 83 of the Easements Act. They provide:
Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, of interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning or this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.'
My attention is invited to the decision of the Patna High Court reported in : AIR1959Pat517 , wherein the High Court has taken the view that:
'There is no infringement of the right, unless what is done amounts to nuisance. In other words, the right of the owner or occupier of a dominant tenement to light or air, is not to be molested by what would be equivalent to a nuisance.
There must, therefore, be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action and that as long as he receives through the windows of his dwelling-house, or in the case of a particular room in his dwelling-house, through the windows of that room, an amount of light or air, which is sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling-house, or of the room in it, as the case may be, no nuisance has as regards him been created, and, no legal wrong has been inflicted upon him.'
My attention was also drawn to a decision reported in (1945) 23 Mys LJ 97. While referring to the easementary right for light and air and with reference to explanations to Section 33 of the Easements Act, the learned Judges stated as follows:
'What is important to be considered in cases of the present kind is not the extent of the quantum of light which was taken away, but the question whether the quantum of light left is insufficient for the physical comforts of the plaintiff according to the ordinary notions of mankind or, in other words, for the comfortable use and enjoyment of his house as a dwelling house.'
Adverting to the expressions 'ordinary notions of mankind' and 'comfortable use and enjoyment' they stated:
'These expressions do not admit of any precise definition and involve elements ofuncertainty. But such uncertainty is inevitable in cases of nuisance. An infraction of an easement right of light and air becomes actionable only when the obstruction amounts to a nuisance. Therefore, whether the obstruction is such as to prevent the owner of the dominant heritage from getting through his ancient windows sufficient light and air according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling house is a question of fact in each case depending upon evidence.'
6. As observed already, the trial court has not framed any issue on this question and the appellate court has also not adverted to this aspect of the matter. Therefore, it is necessary, to set aside the judgments of the lower courts and remand the case to the trial court.
7. In the circumstances, the undermentioned issues are framed for determination by the trial court along with the other issues already framed:
(i) Has there been a diminution in the quantum of light and air as to make it in-sufficient for the physical comforts of the occupants of the premises according to the ordinary notions of mankind, for the comfortable use and enjoyment of his house as a dwelling house?
(ii) Is the plaintiff entitled to mandatory injunction and if so, to what extent is the relief of mandatory injunction to be granted?
8. In view of what I have stated above, the judgments and decrees of the lower courts are set aside and the suit is now remanded to the trial court for determination of all the issues including those that are framed by this court after recording such evidence as the parties may produce in addition to the evidence already on record. The appeal and the cross-objections are disposed of in the above terms.
9. There will be no order as to costs.
10. Appeal allowed; Suit remanded.