Venkatrama Sastry, J.
1. Defendant is the appellant in this L. P. A. Which is preferred against the judgment of our learned brother Ramachandra Rao, J., in Second Appeal No. 368 of 1970, wherein leave was granted.
2. The facts giving rise to this litigation are stated below ; The respondent is the owner of house bearing No. 5/122 situated in the main road, 5th ward of Rajahmundry Municipality. The appellant defendant is the owner of the house bearing door No. 5/123 and it adjoins the plaintiff's house on the north. The terraced house of the defendant was constructed in about 1958. In 1959 when the defendant attempted to raise walls with a view to construct a first-floor on the said house, the plaintiff gave him a notice on 28-9-1959 raising an objection to the effect that the proposed construction would block the free flow of air and light through the only ventilators facing north to the house of the plaintiff, marked in red lines in the rough plan. According to the plaintiff's case the defendant stopped construction obstructs the free flow of light and air through the two ventilators the plaintiff stated that it would work hardship and irreparable damage to him. He therefore filed O.S. 457 of 1966 on the file of the Second Additional Munsif Magistrate Rajahmundry for an injunction restraining the defendant from raising any construction on his terraced building bearing No. 5/123, which interferes with the free passage of light and air through the windows (marked A and B in the rough sketch) of the plaint plan.
3. The defendant contested the suit stating that the plaintiff opened the two ventilators in the upstairs portion without his knowledge, that on protest he agreed to remove the same, that the plaintiff has no easementary right to have the two windows there in order to receive light and air as claimed by him. He also stated that by virtue of an agreement of the year 1930 the boundary wall between the house of plaintiff and the defendant is the joint wall, and that the defendant had aright to construct a building over the said wall. As per that agreement the wall, in which the plaintiff opened two windows, is the joint wall and as such he has no rights whatsoever in it and much less to claim easementary rights for light and sir through the said windows. He therefore pleaded that no injunction could be granted against him.
4. The plaintiff filed a rejoinder stating that the agreement referred to in the written statement is not valid and binding on the plaintiff and that even assuming without conceding that the wall in question is a joint wall, the plaintiff perfected his title to it by adverse possession and enjoyment. He also stated that the claim of the defendant based on that agreement is barred by limitation, by reason of the defendant not enforcing the said agreement within the period of limitation, at any rate within three years from 10-8-1959 when the plaintiff disputed the right of the defendant to raise any construction affecting the plaintiff's right of easement.
5. On the above pleadings the following issues were framed.
1. Whether the two windows in the northern wall of the house of the plaintiff have been in existence since over the prescribed period?
2. Whether the agreement dated 17-12-1930 is true and binding on the plaintiff and is enforceable?
3. Whether the wall in question is a joint wall?
4. Whether the plaintiff is entitled to receive light and air through the two windows?
5. To what relief?
6. On issue No. 1. The trial Court held that the two windows in the northern wall of the house of the plaintiff have been in existence ever since 1930 or 1931. On issue No. 2 the trial Court found that the agreement is true and binding upon the plaintiff and that it is enforceable. On issue No. 3, it found that the wall in question is a joint wall. On issue No 4, the trial Court found, relying upon a decision of Lahore High Court, that the plaintiff can claim easementary right to receive light and air through the windows in the joint wall. It ultimately found that as the plaintiff enjoyed light and air through the two windows in the northern wall as shown in the plaint plan, without interruption for over 20 years ending within two years prior to the suit and the said enjoyment is not on the basis of permission, the plaintiff was entitled to receive light and air through the two windows as easement. In the result the defendant was directed not to build any wall or any construction that would obstruct the passage of light and air through the two windows in the northern wall of the plaintiffs upstairs portion, that are referred to in the plaint plan. The suit was accordingly decreed.
7. The defendant preferred appeal A. S. No. 68/67 to the Court of the District Judge, East Godavary at Rajahmundry. The appellate Court took the two following points for consideration::-
1. Whether the two windows in the northern wall of the house of plaintiff have been in existence since over the prescribed period?
2. Whether the plaintiff is entitled to receive light and air through the two windows?
8. On point No. 1, after considering the oral and documentary evidence, the appellate Court found that it was proved that these two windows in the northern wall have been in existence for more that 20 years and therefore the point was decided in favour of the plaintiff. Regarding the claim of the defendant that the plaintiff cannot get a right of an easement as the windows are in the joint wall, the appellate Court followed the rulings of the Bombay High Court AIR 1938 Bom 215, and Mysore High Court (1970) 1 Mys LJ p. 5 (Short notes on recent cases) in preference to the vies expressed by the Lahore High Court in AIR 1933 Lah 28, and held that the plaintiff does not acquire any easement to receive light and air through the disputed windows in the joint wall and the defendant has got a right to have his construction and block the windows. The appellate Court therefore found point No. 2 in favour of the defendant-appellant. In the end the appeal was allowed and the decree and judgment of the trial Court were set aside and the suit of the plaintiff was dismissed.
9. The plaintiff carried the matter in second appeal. It was heard by our learned brother Ramachandra Rao, J. The learned Judge held that there was a fallacy in the lower appellate Court thinking that the plaintiff is claiming an easementary right in a joint wall, that a distinction should be drawn between the easementary right claimed over the joint wall and an easementary right to receive light and air from he adjoining space through the windows in the joint wall and if this distinction is borne in mind it becomes clear that the view taken by the lower Court cannot be supported, that the decisions of the Bombay High Court AIR 1926 Bom 545, AIR 1932 Bom 513 relied upon by the defendant, no doubt, support his contention, but that he was inclined to agree with the view expressed by the Lahore High Court AIR 1933 Lah 28 in preference to the view taken by the Bombay High Court, inasmuch as the plaintiff claimed as easementary right not in or against the joint northern wall, but claimed a right of passage of light and air over the adjoining open space on the defendant's property from which light and air was passing through the two windows, fixed in the northern wall, which were in existence for well over the statutory period of 20 years. In the end the learned Judge held that the plaintiff has acquired an easementary right to the passage of light and air through the windows in the northern wall, that the plaintiff has established that he would suffer substantial damage, if the defendant is allowed to proceed with the proposed construction so as to obstruct the passage of light and air through the windows in the northern wall of the plaintiff's building. The learned Judge also affirmed the finding that the wall is a joint wall. In the end the decree of the lower appellate Court was set aside and that of the trial Court was restored.
10. In this Letters Patent Appeal, preferred by the defendant, Sri Challa Sitaramayya learned counsel for the defendant-appellant raised the following questions:-
1. There can be no easement in respect of light and air through windows in a joint wall, and
2. As per the agreement, which has been found to be true and valid, the defendant-appellant has got a right to construct, on his terrace, an upstair, which may incidentally affect the right of the plaintiff-respondent.
11. The learned counsel relied upon the two Bench decisions of the Bombay High Court in Rajabhai Mohanbhai v. Lalbhai Mulchand, AIR 1926 Bom 545; Narayana Balwant Jade v. Shankar Waman Golwalkar, AIR 1938 Bom 215 ass well as the decision of Baker, J. In Marghabai v. Motibhai, AIR 1932 Bom 513 in support of his first proposition. He also questioned the correctness of the decision in Muhammad Umar Hayat Khan v. Mohammad Zaman, AIR 1933 Lah 28 of the Lahore High Court. He brought to our notice that the same High Court in a later decision has followed the Bombay view.
12. It is the contention of Sri Seetharamaiah, that where there is no scope for preventive action, there could be no prescriptive right. For this purpose he relied upon two English decisions, which we shall presently mention.
13. Sri Ananthababu, learned counsel appearing for the plaintiff respondent put forward the claim that his client has acquired an easement for light and air for over the statutory period and it is not in or over the joint wall, but a right to get light and air from the defendant's premises and therefore it was permissible. He also relying upon the provisions of Section 16 of the Easements Act contended that the medium of enjoyment of light and air does not depend upon the ownership of the windows. He also relied upon the decision in Muhammad Umar Hayat Khan v. Mohammad Zaman, AIR 1933 Lah 28 and Khatoon v. Aqila Bano, : AIR1956All415 , of the Allahabad High Court. We will now consider the correctness of the respective contentions.
14. It has been held by Eari Halsbury L.C. in the leading case Colls v. Home and Colonial Stores Ltd., (1904 AC 179 ) at p. 182 as follows :-
'Light, like air, is the common property of all or, to speak more accurately, it is the common right of all to enjoy it, but it is exclusive property of none. If the same proposition against which I am protesting could be maintained in respect of air the progressive building of any town would be impossible. The access of air is undoubtedly interfered with by the buildings which are being built every day round London. The difference between the town and the country is very appreciable to the dweller in the cities when he goes to the open country, or to the top of mountain, or even a small hill in the country ; but would the possessor for twenty years of a house on the edge of a town be at liberty to restrain his neighbour from building near him because he had enjoyed the free access of air without buildings near him for twenty years No doubt this is an extreme case, but it is one of the extreme cases which tries the principle. The truth is that though there were objections to ask a jury whether the enjoyment tal talis qualis was such that they might presume a lost grant when nobody supposed that such a grant was ever really made, yet it gave the opportunity of considering what was the extent of the supposed grant, and, of anything so extreme as I have just supposed were claimed no jurymen in their senses would have affirmed such a grant.'
15. There is no natural right, apart from a right of easement, with reference to a right of passage or a right to light and air. Such a right to light and air can be acquired only as a right of easement ( Vide AIR 1936 Mad 142 )
16. In Halsbury's Laws of England, Third Edition, Volume 12, page 582, Paragraph 1262, the law is stated as follows :
'The owner of land has not at common law any right to light ; for the general doctrine of law with respect to land is that everyone may build upon or otherwise utilise his own land, regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and buildings of another person. Every man may open any number of windows looking over his neighbour's land ; for the interference of a neighbour's privacy, or with his prospect gives the latter no cause of action in the absence of other circumstances. On the other hand, the neighbour may be putting erections on his own land obstruct the light which would otherwise reach the other's windows. :
An easement is defined in Section 4 of the Easements Act as follows :-
'An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do somethings, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner ; and the land on which the liability is imposed is called the servant heritage, and the owner or occupier thereof the servant owner. '
Section 12 of the Easements Act runs as follows :
'An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created or in his behalf, by any person in possession of the same. One of two or more co-owners of immovable property may, as such, with or without consent of the other or others, acquire an easement for the beneficial enjoyment of such property. '
Section 15 of the Easements Act runs as follows :-
'When the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years.
xx xx xx xx xx xx the right to such access and use of light or air, support or other easement shall be absolute. '
17. Where the property belongs jointly to two persons, there cannot be dominant and servant ownership in respect of that property. Also where there is fusion of the dominant and servant ownership in the same person, an easement, if any, gets extinguished. This principle is recognised in various decisions.
18. In Halbury's Laws of England, 12th Edition, page 528, paragraph 1144, the law has been stated thus :
' It is an essential characteristic of every easement that there is a both a servant and a dominant tenement and the owner of the servant tenement must bee different persons. A man cannot have an easement over his own land because all acts which he does upon his own land are acts done in respect of his rights as the owner of the land and the law does not allow the co-existence of an easement over land with the possession of the land itself.'
19. In view of the provisions of the Act, the right should be only as an easement for the required period. An easement, as already defined, is a right, which the owner or occupier of the land possesses to do and to continue to do something in or upon or in respect of certain other land not his own. The words ' not his own ' clearly bring out that the property in or upon or in respect of which the easement is claimed should not belong to the dominant owner. The said principle has been recognised in various English and Indian decisions.
20. Lord Shaw of Dunfermline also stated the law in the same terms as follows in Attorney General of Southern Nigeria v. John Holt and Co., 1915 AC 599 at pp. 617 and 618.
' But in their Lordship's opinion the second contention of the Crown is correct. It seems to be undoubtedly true that what was done by the respondents was done by them as in their opinion upon their own lands. There was much in the nature of affairs and the legal situation to induce this opinion, and it is not to be wondered at that not only they, but all parties on the island, appear to have considered these operations which were clearly beneficial to the general interest in no way to be of the nature of wilful appropriation or of trespass, but merely of making good and proper use of their rights as owners of property abutting upon the sea. An easement, however, is constituted over a servient tenement in favour of a dominant tenement. In substance the owner of the domonant tenement throughout admits that the property is in another, and that the right being built up or asserted is the right over the property of that other. In the present case this was not so. '
In the Full Bench decision of the Madras High Court in Subba Rao v. Lakshmana Rao, AIR 1926 Mad 728 ( FB ) the same proposition has been reiterated. It was held therein thus :-
'The mere putting forward of a claim of ownership in legal proceedings is not conclusive against a right of easement, but if the acts done by the person claiming easement in respect of the property during the statutory period are only referable to a purported character of owner they cannot validate a subsequent claim to an easement in respect of the property''.
Their Lordships say that
'We agree with the conclusion of Shearaman, J. In Lyell v. Lord Hothfield, (1914) 3 KB 911 that acts done during the statutory period which are only referable to a purported character of owner cannot validate a subsequent claim to an easement . '
21. In his Full Bench decision the Bombay High Court in Raychand v. Maneklal, AIR 1946 Bom 266 ( FB ) also held that the person claiming right of easement must have been conscious that the property belongs to another. The claim to property as owner during the prescriptive period precluded him from claiming easement over it .
22. Their Lordships of the Supreme Court, while dealing with the case of a tenement acquiring a right to an easement over the leased land considered this position in Chapsibhai v. Purushottam, : AIR1971SC1878 . While quoting with approval the Full Bench decision of the Bombay High Court their Lordships held as follows :
'Therefore, if the owner of the dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of a easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the later, it is necessary to establish that it was exercised on someone else's property and not as an incident of his own ownership of that property. For that purpose his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement . '
23. In view of those clear authorities, it must be held that the person claiming an easement in or over a property should establish that the property, over which he is exercised the right, is someone else's property and not his own. If it happens to be a joint property, as in this case, a joint wall, he cannot acquire an easement in or over that property or in respect of it or through it.
24. There is another principle on which the right to acquire easement can be tested. The right exercised by the dominant owner should amount to trespass on the joint property and it should give an actionable or preventable claim or a power to interrupt to the person affected. In the absence of such a requirement viz. Trespass and the power to interrupt, no easement can be acquired.
25. In Harbidge v. Warwick, (1849) 3 Exch 552, Parke B. Stated at pp. 556 and 557 as follows :-
'We think it clear, notwithstanding the absence of the words in the 2nd Section, above referred to , that it converts into a right such an enjoyment only of the access of light over contiguous land, as has been had for the whole period of twenty years in the character of an easement, district from the enjoyment of the land itself, and that the statute puts this species of negative easement, as it has been termed, on the same footing in this respect as those positive easements provided for by the other sections, all of which, after long enjoyment as easements, are invested with quality of rights. In the first place, the access of light under this section must have been enjoyed for twenty years without interruption, not in the sense of an uninterrupted or continuous user, but without such interruption submitted to for one year after the party interrupted shall have had notice thereof, and of the persons making or authorising the same to be made. This point was determined in the case of Flight v. Thomas. From this it follows, that the legislature contemplated such an enjoyment as could be interrupted by the adjoining occupier, at least during some part of the time . '
26. In Struges v. Bridgman, (1879) 11 Ch D 852, Jossel M. R. Also stated at p. 858 as follows :
'A man cannot establish a right by lapse of time and acquiescence against his neighbour unless he shows that the party against whom the right is acquired might have brought an action or done some act to put a stop to the claim without an unreasonable waste of labour and expense . '
27. On appeal over this decision the House of Lords delivering judgment through Thesiger L. J., also observed as follows :
'But the affirmative easement differs from the negative easement in this, that the latter can under no circumstances be interrupted except by acts done upon the servient tenement, but the former, constituting as it does, a direct interference with the enjoyment by the servient owner of his tenement, may be the subject of legal proceedings as well as physical interruption. To put concrete cases like the passage of light and air to your neighbour's windows may be physically interrupted by you, but gives you no legal grounds of complaint against him . '
28. In Liverpool Corporation v. H. Goghill and Son, (1918) 1 Ch D 307 at p. 314, Eve J., also observed as follows :-
'Before time can commence to run under the Prescription Act there must be an invasion of some legal right. Acts which are neither preventable nor actionable cannot be relied upon to found an easement.
xx xx xx xx xx xx xx 'Untill the user became actionable the basis of the presumption of the consent, that is to say the power of preventing physically or by action was never present. '
29. In Halsbury's Laws of England, Vol. 3, page 380, Paragraph 729, dealing with the topic when tenant in common could trespass, the law has been stated as follows :-
'One tenant in common of a party wall could not under the former law maintain trespass against another for an injury done to the wall, unless there had been a complete ouster or some destruction of the common property. '
Dealing with the right of the co-owners in respect of common property, to start an action for trespass against each other, the law has been stated by Lord Halsbury, in Halsbury's Laws of England, Vol. 38, page 746, Paragraph 1217 as follows :-
'A joint tenant or a person entitled in common under a trust for a sale of land can maintain trespass against his co-tenant if the co-tenant expels him from the land or destroys the subject of the co-tenancy without his consent, but not otherwise, '
30. The Privy Council in Lachmeswar Singh v. Manowar Hossein, (1892) ILR 19 Cal 253 ( PC ) also held that in the case of co-owners, if any one of them has made use of the joint property, the ownership and possession and has not excluded another co-sharer, it does not amount to trespass. It was also stated that by such user of the joint property by one of the co-sharers the property does not cease to be joint, merely because it is used so as to produce more to one of the owners who has incurred expenditure or risk for that purpose. By such user it was also held that the person so using does not acquire any possession or title by adverse possession.
31. In the case of common party-wall or joint wall each co-owner is entitled to a reasonable user of the wall owned in common and so long as each co-owner used it reasonably without interfering with the enjoyment of that wall by the other co-owner or without doing anything which would weaken, damage, increase or diminish the wall enjoyed in common, he is entitled to do what he likes. The other co-owner will have no cause for complaint unless the acts alleged amount to his ouster or to the destruction of the party wall.
32. It has also been held in AIR 1932 Bom 513 that the opening of windows in a joint wall would not amount to trespass and gave no cause of action, so long as the said wall remained joint and therefore no easement could be acquired.
33. In view of the above authorities the opening of the two windows in the joint wall by the plaintiff, in this case, in the year 1930 or 1931 should be treated to be incidental to the enjoyment of the joint property and it does not in any way amount to trespass on the rights of the other, which gives him the cause of action to prevent such trespass by action either physical obstruction or by any action in a court of law. If there is no scope for any such preventable action, it cannot be held that the plaintiff had acquired any easement as claimed in this case. We shall now consider the authorities relied upon by both the parties in the lower Court.
34. In AIR 1926 Bom 545 (1) it was held by Macleod C. J., and Coyajee, J., that there can be no question of easement as regards light and air in the case of joint property. In that case the plaintiff claimed the wall as his and that he had windows therein. He prayed for the issue of an injunction restraining the defendant from raising any construction upon chora or the open space to the south of his wall, thus necessitating the closing of any jails or windows or stopping the mori etc. The trial Court found the wall to be not his but a joint wall that both parties were entitled to the joint user. The suit was therefore dismissed. In the appellate Court it was found that the windows were existing for over 20 years and that the plaintiff was entitled to a legal easement entitling him to an injunction against the respondent from obstructing or interfering with the light and air through these openings. In that view the suit was decreed. In second appeal their Lordships held that there can be no question of easement as regards light and air when both the parties are entitled to full ownership of this wall. It was also further stated 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. It was further observed that ' if the plaintiff opened apertures in the wall he could not acquire an easement of light and air through these 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 defendant's premises. In that view it was held that the plaintiff was not entitled to injunction sought for in the plaint and the suit was dismissed.
35. In AIR 1932 Bom 513, Baker, J. Also following the decision in AIR 1926 Boom 545 (1), and considering in extenso the English and Indian decisions, held 'that a person cannot acquire an easement, unless he acts with the knowledge that it is a case of dominant and servient tenement and he is exercising a right over property which does not belong to him. If he enjoys a right under the supposition that he is an owner of property he does not acquire an easement. Nor can he acquire an easement of light and air over property jointly owned by him with others.'
36. Another Bench consisting of Barloo and Macklin, JJ., in AIR 1938 Bom 215, following the above two cases also held 'that the essence of an easement is that it should be a right over property belonging not to the person claiming easement but to someone else, and therefore it is not possible for a person to acquire an easement of light and air through window in a joint wall belonging to himself as well as to the owner of the other premises. In this case the correctness of the decision in AIR 1926 Bom 545 (1) was questioned. Their Lordships explained fully the reasoning of the earlier Bench and ultimately followed the same view upholding the decision in AIR 1932 Bom 513 as correct law.
37. In S.B. Kapadia v. N.B. Kapadia, : AIR1967Guj87 , N.G. Shelat, J., dealing with the claim for an easement in respect of a Jali, at page 92 held as follows:-
'In order to claim any such rights, it must be a right claimed and acquired against some other owner of a property, and there was none in the case as both the properties belonged to the same person viz., the father of the parties.'
The learned Judge followed the decisions of the Bombay High Court in AIR 1932 Bom 513, and held that the position of law is well settled and is based upon various decisions of different High Courts.
38. The plaintiff-respondent relied upon the decision in Jai Lal, J., of Lahore High Court in AIR 1933 Lah 28. The facts of the case were that the plaintiff and the defendant were owners of adjoining houses, the plaintiff was being there for more than 20 years and in the Southern wall of this house there are two holes which had been giving light and ventilation to the plaintiff's house for more than 20 years. On the south of the wall in which these holes exist was the land of the defendant, on which he began to construct a house, and he also built up against the wall closing the ventilators mentioned above. Plaintiff therefore instituted a suit for injunction and other consequential reliefs. The District Judge on appeal found that the wall on which these holes existed was the joint wall of the plaintiff and the defendant, and held that the easement, claimed, could not be acquired against the persons' own property and he therefore dismissed the suit. The learned Judge in Second Appeal held that there was misapprehension in the mind of the appellate Judge as to the nature of the plaintiff's suit. According to the learned judge, the easement claimed by the plaintiff was against defendant's property, which was to the south of the joint wall. The wall is the means of enjoying the easement, and that the easement is not claimed against or in the wall. The learned Judge goes on to say that
'it is not the wall which is the servient tenement, but the defendant's land to the sough and that the plaintiff, who was the owner of the property to the north was entitled to an easement, on the facts found by the District Judge, against the land of the defendant, which is to the south. He went on observing that the question whether the defendant is entitled to close the ventilators as a joint owner of the wall has nothing to do with the enjoyment of the easement. The learned Judge observed that if the defendant had claimed, which he did not claim, in his written statement that he, as a joint owner of the wall was entitled to close the holes in it, that question would have had to be determined with regard to the respective rights of the parties as joint owners of the wall. As I have already stated the defendant did not claim any such right and no such right has been claimed even before me. I am unable to understand how the defendant as a joint owner of the wall could close the holes which the plaintiff made in the wall more than 20 years ago. On all these grounds, therefore, the action of the defendant in building up against the holes thereby stopping the access of light and air of the plaintiff's house was illegal and unauthorised and the plaintiff was certainly entitled to the relief for that reason. What relief the plaintiff is entitled to is a matter which should be determined by the learned District Judge on a consideration of all the facts of the case.. The case will go back to the District Judge, under Section 151, C. P. C. With directions to decide the appeal of the plaintiff, the defendant's appeal before him having been disposed of by this order. Costs of parties will abide the result.'
It is therefore clear from this passage that the learned Judge did not decide whether there can be an easement in or over or through the joint wall. The decision proceeds more on the basis that the easement claimed over the defendant's land and the means to enjoy the easement would therefore be not relevant or material. At the same time there is no decision on the question whether the defendant could object to the holes being made in the joint wall or be could obstructed or close them. It is not therefore an authority for the proposition, which has been laid down in the above decisions of the Bombay High Court, referred to by us supra.
39. That this decision did not decide the question posed in the decisions before Bombay High Court mentioned above, has been held by Bhide J., in Onkar Nathv. Muni Lal, AIR 1939 Lal 28. It was held that
'In the case of joint property, every co-sharer has a right to use it, consistently with the rights of the other co-sharers until partition. Where therefore one of the owners of a joint wall keeps ventilators in the wall so erected, he does so consistently with the rights of the co-owner and hence cannot acquire a right of easement in respect of the ventilators against the co-owner.'
40. The learned Judge followed for this proposition the decisions of the Bombay High Court in AIR 1926 Bom 545 (1) and AIR 1938 Bom 215. The decision the High Court in AIR 1933 Lah 28 was also considered and the learned Judge observed that:
'the point now raised appears to have been not raised and was left undecided, in that case.'
41. In : AIR1956All415 a single Judge of the Allahabad High Court held that:
'The essential ingredient of 'Animus' is there if the servient tenement does not belong to the person claiming the easement absolutely and if the exercise of the right is capable of being resisted. If that land over which the easement is claimed belongs to certainly affected injuriously by the exercise of a right of way over the land and to that extent the person exercising the right is obviously doing an act detrimental or prejudicial to the rights of the other owner.'
The learned Judge considered the two decisions of the Bombay High Court in AIR 1938 Bom 215; AIR 1932 Bom 513 and held that the learned Judges, who decided the above cases were not invited to consider that the other joint owner could have resisted the plaintiff in his using the property for the better enjoyment of his own exclusive property and distinguished them in that way. The learned Judge also referred to decision in (1879) 11 Ch D 852, quoted by us supra and stated:
'No doubt it is well settled that there can be no easement except by user which is capable of being resisted either, physically or in courts.'
The above case was a case relating to right of way and not to receive light and air through windows opened in the joint wall. We do not think it necessary to consider the correctness of the said decision in regard to the right of way. But we think that the decision is no authority on the question of acquisition of an easement in respect of a right to receive light and air through windows in a joint wall. In any event the said decision runs counter to the consistent view taken by the Bombay and Gujarat High Courts, mentioned by us supra.
42. In view of the above authorities and the propositions of law, in relation the acquisitions of an easement in regard to light and air, we have no doubt in our mind that the view expressed by the Bombay and Gujarat High Courts is the correct one and we therefore follow it as it is based on sound legal principles supported by authorities.
43. We may also observe here that the Easements Act does not apply to the Province of Punjab and the case in AIR 1933 Lah 28 must have been decided on general principles rather than on any statutory provision.
44. On consideration of the statutory provisions mentioned supra, viz., Sections 4, 12 and 15 we do not think that the plaintiff, who is the co-owner of a joint wall, in this case, could have acquired an easement in respect of light and air, through the windows in the joint wall in question, whatever may be the period of his enjoyment prior to the date of the suit. As we have held that the normal method of enjoyment of joint wall also includes the enjoyment by opening windows or ventilators, which could not give rise to any trespass so as to give a cause of action for an obstruction or a suit in a Civil Court to prevent it at the instance of the other owner, we do not think that there is any acquisition of easement by the plaintiff in this case.
45. We therefore, differ from our learned brother Ramachandra Rao, J. And hold that the view expressed in the case AIR 1933 Lah 28 is not the correct law, and the view expressed to the contrary by the Division Benches of the Bombay High Court, adverted to by us above, is correct.
46. We have also mentioned that the agreement relied upon by the defendant, in this case, having been found to be true, valid and binding on the plaintiff, he cannot prevent the defendant by an injunction from constructing any superstructure basing it on the joint wall in question. The fact that it incidentally affects his light and air does not give him any cause of action in this case to obtain an injunction against the defendant.
47. We, therefore hold that the view taken by the learned District Judge. East Godavari at Rajahmundry is correct and the suit is, therefore liable to be dismissed..
48. In the result the L. P. A. Is allowed and the suit of the plaintiff is dismissed. No costs.
49. Appeal allowed.