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Kundan Bibi Vs. Kunni Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All571
AppellantKundan Bibi
RespondentKunni Lal and ors.
Excerpt:
act no. v of 1882 (indian easements act), sections 15 and 28 (c) - easement--prescriptive right to light and air--infringement of right-actual damage. - - section 15 of that act provides that where the access and use of light and air to and for any building have been peaceably enjoyed, as an easement, without interruption and for 20 years the right to such access and use of light or air shall be absolute......of the purposes for which it has been used. the latter definition of the extent of a prescriptive right to light and air is not in accord with the english law as laid down in recent decisions, but i must be guided by the statutory law. on the finding that there was an interference with the prescriptive right which the plaintiff had acquired, she was entitled to the decree passed by the learned judge. i may also point out that this was not a case of mere obstruction, but one opening was entirely and the other almost entirely blocked up. the case is apparently similar to that which was before the bombay high court in nandkishor balgovan v. bhagubhai pranvalabhdas (1883) i.l.r., 8 bom., 95. the learned advocate for the appellants also contended that this was a case in which a decree for.....
Judgment:

Aikman, J.

1. This appeal arises out of a suit brought by the plaintiff respondent against her neighbours, the defendants, in which she asked for an injunction ordering the defendants to demolish certain constructions which they had made, and which according to the plaintiff's case, had blocked up a window and two sky-lights in her house. Other reliefs were claimed, but in this appeal we are only concerned with the first relief asked for, namely, in regard to the closing of the window and the two sky-lights. The learned District Judge after an inspection of the locality found that the construction made by the defendants entirely blocked up the window and blocked up all but a minute portion of one of the sky-lights. He accordingly found the plaintiff entitled to an order for the removal of so much of the construction as blocked up the window and the sky-light. In appeal to the lower Court it was contended that the plaintiff had not acquired any right of easement in respect of the openings so blocked up, but this ground is no longer urged before me. The only plea argued--and argued with much ability by the learned advocate for the defendants appellants--is that on the finding of the District Judge, to the effect that 'from what he saw little or no harm had been done,' the decree which he passed was wrong in point of law. In support of his argument the learned advocate referred to the decisions in Colls v. Homeand Colonial Stores, Ld. 1904, A.C., 179 and Kine v. Jolly 1905, 1 Ch., 480. These decisions would have a distinct bearing on this case were not the matter covered, as I hold it to be, by the provisions of the Indian Easements Act. Section 15 of that Act provides that where the access and use of light and air to and for any building have been peaceably enjoyed, as an easement, without interruption and for 20 years the right to such access and use of light or air shall be absolute. Again Section 28(c) provides 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 irrespective of the purposes for which it has been used. The latter definition of the extent of a prescriptive right to light and air is not in accord with the English law as laid down in recent decisions, but I must be guided by the statutory law. On the finding that there was an interference with the prescriptive right which the plaintiff had acquired, she was entitled to the decree passed by the learned Judge. I may also point out that this was not a case of mere obstruction, but one opening was entirely and the other almost entirely blocked up. The case is apparently similar to that which was before the Bombay High Court in Nandkishor Balgovan v. Bhagubhai Pranvalabhdas (1883) I.L.R., 8 Bom., 95. The learned advocate for the appellants also contended that this was a case in which a decree for damages might have been passed. No such plea was taken in the Court below and there is no plea to that effect in the memorandum of appeal before me and I decline to entertain it.

2. For the above reasons I must hold that the appeal fails, and I dismiss it with costs.


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