1. This is a plaintiff's appeal against a decree of the lower appellate Court modifying a decree of the Court of first instance. The plaintiff claimed an injunction to restrain the defendants from interfering with the right of light and air which he alleged he enjoyed through a window in his premises which overlooked the defendants' land and premises. The plaintiff's case was that the defendants had planted trees and shrubs which tended to block his window and had also placed a screen in front of it which completely shut out the light and air which the plaintiff had previously enjoyed. The learned Munsif who heard the case ordered the removal of most of the obstructions complained of including the screen which was blocking the window, but on appeal the learned Subordinate Judge whilst confirming most of the Munsif's findings came to the conclusion that an injunction compelling the defendants to remove the screen was not justified upon the evidence. He held that as long as the screen was placed 1 1/2 feet from the window no substantial interference with the plaintiff's right of light and air would be caused. Consequently he modified the decree of the Court of first instance to this extent that the defendants should be allowed to retain the screen but at a minimum distance of 1 1/2 feet from the window in dispute. It has been argued before me by Dr. Nasim who appears for the plaintiff-appellant that the learned Subordinate Judge was wrong in modifying the decree so as to permit the defendants to maintain the screen at a distance of 1 1/2 feet from the window. He contends that the presence of such a screen even at such a distance from the windowis bound to shut out a certain amount of light and also bound to interfere to some extent with the free passage of air. It is to be observed that the defendant-respondents do not now contest the correctness of the lower appellate Court's finding that the plaintiff had a right to light and air through this window. Both the Courts below found as a fact that such right had been enjoyed for over 20 years before the proceedings. Consequently the plaintiff-appellant must be held to have a right of light and air under Section 15, Easements Act.
2. Great stress has been laid by counsel for the appellant upon Section 28, Easements Act. That section provides that with respect to the extent of easements and the mode of their enjoyment, certain provisions shall take effect., The extent of easements such as light and air and the mode of their enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which the right was imposed or acquired. The section then goes on to state that in the absence of evidence as to such intention and purpose, the extent of a prescriptive right to the passage of light and air to a certain window, door or other opening, is that quantity of light and air which has been accustomed to enter the opening during the whole of the prescriptive period irrespective of the purposes for which it has been used. It is now contended before me that the plaintiff, after acquiring an easement of light and air through this window, was and is entitled to all the light and all the air which had been accustomed to enter that opening during the whole of the 20 years during which easement was acquired. It is contended that any obstruction cutting off any quantity of such light or air which had previously entered the window would amount to an actionable interference as it would leave the plaintiff with less air and light than he had been accustomed to receiving during the period in which he acquired the easement. On the other hand Sections 33 and 35, Basements Act, make it clear that a plaintiff is not entitled to an injunction or damages in every case of an interference with an easement. Section 33, Basements Act, provides that the owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement, or of any right accessory thereto, provided that the disturbance has actually caused substantial damage to the plaintiff. Three explanations are appended to this section by way of explanation as to what amounts to an actionable interference with an easement. The second and third explanations are confined to easements of light and air and from a perusal of these explanations it is clear that no interference with the free passage of light and air is actionable unless such interference is of a substantial character. Section 35, Basements Act, provides that subject to the provisions of the
3. Specific Belief Act 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an -easement: (a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter, and (b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed , disturb the easement. This section makes it clear that an injunction cannot be granted in the case of an actual interference unless there is an actionable interference with the [easement within the meaning of Section 33 of the Act and that has been so held in Gajadbar v. Kishori Lal 1915 13 ALJ 385. In short to succeed in this case the plaintiff-appellant must show that the placing of the screen within 1 1/2 feet of the window in question would cause substantial damage to him within the meaning of that phrase as explained in the explanations appended to Section 33.
4. The plaintiff-appellant relies upon a decision of this Court, viz. Kunni Lal v. Kundan Bibi (1907) 4 ALJ 477, in which it was held that the definition of the extent of a prescriptive sight to light and air, as laid down in Section 28, Basements Act, viz, that quantity of light and air which has been accustomed to enter an opening during the whole of the prescriptive period irrespective of the purposes for which it has been used, is not in accordance with the English law as laid down in Colls v. Home and Colonial Stores (1904) AC 179 and Kine v. Jolley (1905) 1 Ch 480. Consequently it was held in that case that an interference which lessened the accustomed amount of light and air was actionable and could be restrained. In that case Aikman, J., did not consider the effect of Sections 33 and 35, Easements Act, upon the case before him. The moment he held that there had been an interference with the amount of light and air entering the opening in question he held that the plaintiff was entitled to succeed. With great respect to the learned Judge who decided that case I am unable to follow it because in my view it entirely overlooks Sections 33 and 35, Basements Act, which deal specifically with what claims are actionable.
5. I may add that the case in Kunni Lal v. Kundan Bibi (1907) 4 ALJ 477 has been discussed in previous cases in this Court where single Judges have refused to follow it. In Durga Prasad v. Laohmi Narain 1924 All 394, Kanhaiya Lal, J., did not follow it and neither did Ashworth, J., in Suraj Narain v. Kalyan Das 1929 All 430. In my view the judgments of Kanhaiya Lal, J. and Ashworth, J., in the cases to which I have referred are to be preferred to that of Aikman, J., in Kunni Lal v. Kundan Bibi (1907) 4 ALJ 477 and that being so I do not follow the latter case. In my view the Court must always decide whether an alleged obstruction has actually caused substantial damage to the plaintiff. In ascertaining whether substantial damage has been caused the Court must be guided by the three explanations to Section 33. In the present case the learned Subordinate Judge has considered Section 33. He has held as a fact that if the screen is hung at a distance of 1 1/2 feet from the window it cannot diminish the light or air to such an extent as to amount to a substantial invasion on the plaintiff's right to the same and moreover that it will not materially interfere with the plaintiff's weaving work which is carried on in the room in question. Prom the judgment it is clear that the learned Judge has considered what the law demands that he should consider, viz. the three explanations, Nos. 1, 2 and 3 to Section 33, and having considered these matters has come to the conclusion that the screen placed 1 1/2 feet from the window causes no substantial damage to the plaintiff. Whether substantial damage has or has not been caused by an obstruction is a question of fact.
6. Here there was ample evidence before the Court. It is not for me to say whether the learned Subordinate Judge arrived at a correct finding of fact at all. What I am concerned with is whether or not there was evidence upon which a finding of fact could be based. There was such evidence in this case and I am satisfied that the learned Judge did not misdirect himself in point of law when considering this evidence. That being so his finding is conclusive that the screen placed 1 1/2 feet away from the window would not cause actionable damage to the plaintiff and therefore he is not entitled to an injunction compelling the defendants to remove the screen further away than a distance of 1 1/2 feet. No ground has been made out for interfering with the conclusions of the lower appellate Court and that being so this appeal is dismissed with costs. I make no order as to the costs in the lower appellate Court or in the Court of first instance. It has been contended that this case raises important questions of law and that leave to appeal should be granted. In my judgment the points of law are now concluded by binding authorities in this Court and that being so leave is refused.