(1) This second appeal by the defendants is directed against the judgment and decree passed against them by the Second Additional District Judge, Dharwar in Civil Appeal No. 342 of 1958 directing the issue of a permanent injunction restraining them from putting up a structure over their open space marked JKMN in the sketch and from constructing a katta thereon exceeding three feet in height.
(2) The plaintiff instituted Civil Suit No. 192 of 1958 for the reliefs granted to him by the appellate Court, alleging that he was the owner of the house marked ABCD in the sketch attached to the plaint and of the katta with a roof over it. To the front of the katta is the Hanuman temple. The house bears Village Panchayat No. 846. Adjoining the plaintiff's house on its south is the house owned by the defendant, bearing V.P.C. No. 847 with a similar katta to its front. The open space marked JKNM in the sketch in the sketch belongs to the Government and is being used by the plaintiff, defendants and a divided member of their family by name Karkappa, for parking their carts and keeping their agricultural implements. The plaintiff further alleges that he had acquired an easementary right to take light and air from the open space in front of the defendant's house to his own house and that the defendants were trying to obstruct the enjoyment of that right by putting up a structure unauthorisedly on the katta. The defendants resisted the claim on the ground that the open space and the katta were of their exclusive ownership and that the plaintiff had neither easementary right to take light and air over it to his house nor to make use of it in any manner. They asserted that they had a right to construct a structure as they liked.
(3) On the evidence adduced by the parties, the learned trial Judge came to the conclusion that the plaintiff had no right to use the open space and had not acquired any right of easement to take light and air, by prescription. He accordingly dismissed the suit with costs.
(4) The plaintiff then filed Civil Appeal No. 342 of 1958 in the Court of the District Judge at Dharwar. The appeal was heard by the Second Additional District Judge. He negatived the plaintiff's contention that the open space in front of the defendant's house had been kept in common for their joint use in the family partition 30 years ago but upheld their claim to receive light and air through the space as quasi-easement under S. 13 of the Indian Easements Act. He held that if the defendants raised any structure on the open space, they would render the plaintiff's house 'uncomfortable' for his occupation. He accordingly allowed the appeal and decreed the plaintiff's suit restraining the defendants by a permanent injunction from putting up a structure over the open space JKMN and from 'constructing a katta of a height more than 3 ft. Over the suit site.'
(5) In the Second Appeal the defendants have attacked the decree of the appellate Court as being contrary to law. Mr. B.V. Deshpande the learned counsel for the appellants submitted that the District Judge had erred in entertaining a new ground in appeal, that the plaintiff could not acquire a right of easement for light and air through the door of his house across the defendants' open site and that no injunction could have been issued as there was no proof of the defendants' proposed structure resulting in nuisance to the plaintiff so as to entitle him to a permanent injunction in law.
(6) The position of the properties owned by the parties can best be understood by reference to the sketch produced in the case. The three houses bearing V.P.C. Nos. 846, 847 and 848 formerly belonged to the joint family. The house bearing V.P.C. No. 846 was allotted to the share of the plaintiff's family while that bearing No. 847 was allotted to the defendants' family, the third house being allotted to the family of one Karkappa who is not a party to the suit. All these three houses have a verandah and some open space. The open space in front of the plaintiff's house is partially covered by the Hanuman temple, leaving 5 ft. and 2' in width between the temple and the defendants' open site now in dispute.
The plaintiff has no proof about the terms of the partition and no document containing the terms of partition has been produced by him. The door through which the plaintiff claims to have acquired a quasi-easementary right to light and air faces East and there is no evidence to show the distance between the door-frame and the boundary line JM of the open space JMNK. The door admittedly does not open over the disputed space and hence it is difficult to appreciate the merits of the plaintiffs' contention relating to easementary right for light and air across the open space. Mr. Bhat the learned counsel appearing for the respondents submitted that his client was getting light and air through his door from the south-east direction over part of the open space. I will deal with the merits of this argument presently. It is pertinent to mention at this juncture that the plaintiff filed suit No. 55 of 1958 but withdrew it with liberty to bring a fresh suit, as he had made no case of easementary right. The plaintiff contended that the open space in dispute belonged to the Government and that all the members of the three branches were making use of the same. Both these contentions have been concurrently negatived by the Courts below.
(7) The first difficulty in the way of the respondent's contention is that as no part of the door opens over the open space in dispute nor directly gets any light and air from it, he cannot claim easementary rights over the open space which is now held to be of the exclusive ownership of the defendants. According to S. 7 of the Indian Easements Act (hereinafter called the Act), every owner of immovable property has an exclusive right to enjoy and dispose of the property subject only to the easementary rights which the dominant tenement might have acquired under the provisions of the Act. The learned Counsel for the respondent relied upon S. 13(e) and (f) of the Act to support the judgment and decree of the appellate Court. According to those provisions, where a partition is made of the joint property of several persons, if an easement over a share of one of them is necessary for the enjoyment of the share of another of them, the latter shall be entitled to such easement. If such an easement is apparent and continues and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. In order to attract the operation of this section, it is necessary to show that the easementary right is claimed 'over the share of one of them' that is, one of the parties to the partition. Illustrations (c), (d) and (e) to that Section which refer to the right of easement for light and air through the windows speak of windows 'overlooking the land' of the servient tenement. In the present case no portion of the door overlooks the land of the defendants. It is an elementary principle in physics that the light always travels in straight line, and unless the party claiming easementary right to light and air establishes that he had received light in that manner for the prescriptive period his right based on easement cannot be upheld.
(8) In this view the learned trial Judge was right in holding that the plaintiff and not established any sustainable claim to light and air.
(9) Mr. Deshpande the learned counsel for the appellant contended that no right to light and air could have been acquired as an easement through an ordinary doorway. The contention is that such a door is primarily meant for ingress and egress and is not intended as an aperture for light and air. In support of his argument he placed reliance on the following passage in paragraph 1279 of Halsbury's Laws of England (3rd Edition, Vol. 12, page 592):
'The apertures through which the light may enter the dominant tenement are not confined to ordinary windows, but may consist of skylights, unglazed windows in which there are not even sashes, the windows x x x x. An ordinary doorway primarily constructed for the purpose of being closed, however, is not such an aperture as the apertures to which the Act applies.'
He also relied upon another passage from 'Gale on Easements' (13th Edition by Michael Bowles, Page 220):
'Where the right to light is claimed under the Prescription Act, 1832, the enjoyment must have been had to and for a building, in which there must be some aperture. This aperture may be a skylight, or the glass roof and sides of a greenhouse, but not an ordinary doorway. The aperture defines the area which is to be kept free over the servient tenement.'
According to both these passages, an ordinary doorway is not an aperture for the purpose of claiming easementary right to light and air. They further make it clear that whatever may be the nature of the apertures, they define 'the area which is to be kept free over the servient tenement, implying that the right claimed must be over the definable portion of the servient tenement. While the latter proposition excluding the doorway from the category of apertures for acquisition of easementary rights to light and air is deduced from the provisions of Prescription Act of 1832. This position is made clear by the decision in Levet v. Gas Light and Coke Co. (1919) I Ch. 24 where is has been laid down that Section 3 of the Prescription Act, 1832 applies to windows or apertures in the nature of windows or apertures in the nature of windows and not to door-way openings which were primarily constructed for the purpose of being closed and thus excluding light and that there could be no prescriptive right to light passing through an ordinary doorway when it is opened. This legal position is inapplicable to India in view of the express provisions contained in the Indian Easements Act, 1882. Section 28(c) lays down that
'the extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used.'
So according to the Indian Law the prescriptive right to light and air can be acquired even through a door. So this contention of Mr. Deshpande has to be rejected.
(10) The learned Counsel is however on a very firm ground in his submission that no action can be maintained either for compensation under Section 33 or for injunction under Section 35 of the Act unless it is established that the interference complained of results in substantial injury in a claim for compensation or amounts to nuisance in a claim for injunction. Section 33 entitles the owner of any interest in the dominant heritage, or the occupier of such heritage, to compensation only if he proves that the disturbance complained of 'has actually caused substantial damage' to him. This Section is not relevant for our purpose as the suit is one for injunction. Section 35 empowers the Court to grant an injunction to restrain the disturbance of an easement subject to the provisions of Secs. 52 and 57 of the Specific Relief Act, 1877.
(11) Both the sides have relied upon certain decisions in support of their respective contentions.
(12) The leading case on the subject is the decision of the House of Lords in Colls v. Home & Colonial Stores Ltd., 1904 AC 179. This decision discusses a number of earlier decisions and lays down that to constitute an actionable obstruction of ancient light it is not enough if the light is less than before but that there must be substantial privation of light, enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind and in the case of business premises to prevent the plaintiff from carrying on his business as beneficially as before. Lord Devey who concurred with the other Law Lords, summarised the positions thus:
'According to both principle and authority, I am of opinion that the owner or occupier of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary notions of mankind, and that the question for what purpose he has thought fit to use that light, or the mode in which he finds it convenient to arrange the internal structure of his tenement does not affect the question. The actual user will neither increase nor diminish the right.'
This decision has been cited with approval by the Calcutta High Court in Paul v. Robson, ILR 42 Cal 46 : and Jamna Das v. Gulraj relied upon by Mr. Deshpande for the appellant. In the Calcutta case the respondent had erected a building to the East of the appellant's premises at a distance of 17 ft. from the Eastern wall of the appellant's building, the walls of the two buildings running parallel to one another. The new building of the respondent greatly exceeded in height. The former building upon the site had decreased the amount of light coming to the eastern windows of the appellant. The Appellant therefore complained of interference with the access of light to his windows and brought the action. It was dismissed on the ground that he had failed to establish that the obstruction complained of was a nuisance.
The appeal before the Rajasthan High Court arose out of a suit for perpetual injunction restraining the defendant from obstructing the light and air of a window of the plaintiff's house. The suit was dismissed on the ground that the plaintiff had failed to establish 'substantial injury' as contemplated by sections 33 and 35 of the Act. In arriving at this decision the High Court relied upon the decision in Paul's case. ILR 42 Cal 46 : (AIR 1914 PC 45) as also on that in Coll's case, 1904 AC 179.
(13) The learned counsel for the respondent has not been able to show that his client had established substantial injury or privation of light so as to render his occupation of the house uncomfortable according to the normal standard of the locality. As was observed by Lord Lindley in Coll's case, 1904 AC 179, the right to light in truth is no more than a right to be protected against a particular form of nuisance and no action against the defendant can be maintained 'unless the obstruction amounts to actionable nuisance.'
(14) On facts, I have concurred with the trial Court in holding that the respondent has no right of easement at all. Even if he had such right the learned appellate Judge who granted him a decree, nowhere records that the threatened action of the defendants in constructing a building on the open space was likely to materially affect his comforts. It is in evidence that there are openings and skylights for the house of the plaintiff and it is through them that he gets light and air. It is also contended that the plaintiff gets light and air through the northern door of his house. The learned District Judge has approached the question from a wrong angle. He has stated that the
'plaintiff has been enjoying apparently and continuously certain amount of light and air through the open space JKMN from the time the partition took place. This enjoyment of light and air is necessary for his comfortable living in the house. There is no evidence to prove that at the partition it was intended that the first defendant should construct a building on the open space JKMN. I feel that the construction of a wall along JM would make his occupation of the house uncomfortable because the passage to his house would be narrowed to 5'-4' and in a narrow passage of 5'-4' when the walls on the other sides are raised to 8 or 10 feet in height, there would be very little flow of light and air.'
In coming to this conclusion he has committed two errors. Firstly, he seems to be of the view that it was for the defendant to show that at the time of partition he was granted the freedom of construction over the open space JKMN; it is for the plaintiff who comes to the Court, to establish that the portion of the house occupied by him had any right of easement over the open space. In law the owner of every open space is entitled to build over it unless his action in building interferes with an easementary right already acquired. The second error committed by the learned Judge is that he has not addressed himself to the question as to whether the evidence produced by the plaintiff established that there was material interference with light and air.
(15) The decisions cited by the learned counsel for the respondent do not help him in any manner. My attention was drawn to the decision of the Madras High Court in Gangulu v. Jagannatham, AIR 1924 Mad 108. The question before the Court was whether the plaintiff was entitled to irrigate his lands defendant's field. The learned Advocate relied upon the following passage :
'....... An easement apparent and continuous and necessary for enjoying the portions severed from the unity of ownership will pass to the transferee unless a contrary intention is expressed or implied in the instrument of transfer.'
The principle cannot be availed of by the plaintiff as he has not shown that any right to light and air was being enjoyed by the family when it was joint from across the open space in dispute. The decision in Brajeshwari Dasi v. Nityananda Das : AIR1928Cal365 deals also with an altogether different proposition. It lays down that a vendee is entitled to have the enjoyment of the light and air of the ancient windows in the same manner as it was enjoyed during the unity of possession when the vendor enjoyed both the properties. My attention was also drawn to another decision of the Madras High Court in Moidin Kunhi Beavy v. Gopalakrishna, : AIR1953Mad849 where the general principles relating to acquisition of right to light and air have been discussed. But there is nothing which throws light on the point at issue viz., the nature and extent of obstruction which will entitle a plaintiff to an injunction against the defendant.
(16) In the light of what has been stated above, it is clear that the judgment of the appellate Judge is erroneous and cannot be upheld.
(17) In the result, the appeal is allowed and the plaintiff's suit is dismissed with costs throughout.
(18) Appeal allowed.