A.V. Varma, J.
1. This second appeal and the cross-objection filed therein are being disposed of by a common judgment as they arise out of the same suit. The suit was decreed by the trial court ill its entirety. On appeal, the decree of the trial court was modified. Whereas the decree of the trial court for removal of constructions complained of by the plaintiff-respondent was affirmed, the decree of the trial court in respect of the parnala was set aside and the plaintiff-respondent's suit in that regard was dismissed. Aggrieved by the decree passed by the lower appellate court, the defendants have filed this second appeal. The plaintiff-respondent on the other hand, has filed cross-objection against the dismissal of their claim in respect of parnala.
2. The plaintiff-respondents came to the court with the allegations that they have five ventilators on the ground floor of their house in their western wall. Through these ventilators, the plaintiffs were enjoying uninterrupted passage of light and air into their residence for more than 50 years. The defendants are constructing their house towards the west and if they were permitted to complete the constructions as planned by them free passage of the light and air into the house of the plaintiff-respondent shall have been completely blocked. The plaintiff has also prescribed an easement-ary right of flow of water towards the house of the defendants. However, the house which the defendants are constructing, if allowed to be completed is bound to interfere with the right of the plaintiffs to flow water from their house. In paragraph 7 of the plaint, it was alleged that if the defendants were allowed to complete their constructions, they would deprive the plaintiffs of enjoyment of the air and light and there would be consequent, darkness in the room of the plaintiff's house.
3. The defence of the defendant No. 1 was that there did not exist any ventilators on the ground floors or in the upper storey in the western wall of the plaintiff's house. It was asserted that the defendant No. 1 had, constructed the wall at the site of their old Kuchcha wall which was always just adjacent to the western wall of the plaintiff's. The said defendants also denied the existence of any rights claimed by the plaintiffs to flow water from their house towards the defendants' house. A plea of estoppel was also raised in the written statement.
4. The defendant No. 2 also filed a separate written statement and raised pleas similar to those raised by the defendant No. 1.
5. On the pleadings of the parties issues were framed by the trial court.
6. All the material issues were answered against the defendants-appellant and in favour of the plaintiff-respondent. With the result that the suit of the plaintiff-respondent was decreed in toto.
7. Aggrieved by the decree passed by the trial court, the defendants filed an appeal which was partly allowed. The decree of the trial court in regard to the right claimed by the plaintiffs to receive light and air through four ventilators en the ground floor and one On the upper storey was affirmed. A mandatory injunction was issued by the lower appellate court to protect that right of the plaintiffs. In regard to the easement claimed by the plaintiff-respondents to flow water from their house towards the house of the defendants, the lower appellate court held against plaintiff-respondents and dismissed their suit for that relief. The lower appellate court took the view upon evidence that the plaintiff had only four ventilators on the ground floor and one on the first floor through which they could be said to have acquired the right to receive light and air. In regard to the remaining ventilators the claim of the plaintiff-respondent was negatived.
7A. So far as the question as to the number of ventilators through which the plaintiffs could be said to have been enjoying the right to receive light and air is concerned, the finding of the lower appellate court appears to be correct and calls for no interference. The said finding is affirmed and shall not be open to review upon remand of the case to the trial court which I am proposing to do. Similarly, the finding of the lower appellate court that the plaintiff-respondent has failed to prove the existence of any parnala towards the house of the defendants or that he has prescribed an easementary right to flow water of his house towards the defendants's house also seems to be entirely unexceptionable. Learned counsel for the plaintiff-respondent was unable to satisfy me that the said finding suffers from any error of law. That finding is, therefore, also affirmed and shall not be open to review. The cross-objection filed by the plaintiff-respondents is, therefore, liable to be dismissed.
8. Now, I turn to the main question which was debated in the second appeal. Learned counsel for the appellant vehemently contended that both the courts below have committed a patent error of law and jurisdiction in granting a decree for mandatory injunction to the plaintiff-respondent, in regard to their alleged right to receive light and air through the ventilators in question without, addressing themselves to an important issue namely whether Or not -he plaintiff-respondent suffered any substantial prejudice or injury by the acts complained of by the plaintiff-respondent in consequence of the construction of the building of the defendant-appellants. It was submitted that in order to constitute an actionable obstruction of free passage of light or air through the ventilators in question into the house of the plaintiff, it was not enough to allege or prove that the quantity of light or air which was previously being received by the plaintiff-respondent had been reduced or that the same is less than that enjoyed earlier. In order to be able to claim a mandatory injunction, it was submitted, it was essential for the plaintiff-respondent to prove that there has been substantial diminution of light or air sufficient to render the occupation and use of his house inconvenient or uncomfortable. Neither of the two courts below has made any attempt to find out whether there has been such substantial deprivation or obstruction re-sulting in substantial injury to the plain-tiff-respondent.
9. In support of the aforesaid contention, learned counsel placed reliance on three decisions of this court and one of the Supremo Court. These are respectively 1973 All WR (HO 173. (Ram Nara-yan Ram v. Ram Dhani Ram) : AIR1929All430 , (Suraj Narain v. Kalyan Das) : AIR1933All493 . (Shambhu Prasad v. Mahadeo Prasad) and : AIR1971SC1878 (Chapsi Bhai Dhanjj Bhai Dand v. Purushottam).
10. Having heard learned counsel for the parties at some length on the above controversy, I find that the contentions raised by the learned counsel for the defendant-appellants is frilly supported by the aforesaid decisions. The view of this court on this controversy appears to be unanimous. On an analysis of Sections 28, 33 and 35 of the Easements Act, this court has clearly held in all the aforesaid cases that the plaintiff must establish a substantial injury or deprivation of his right sufficient to render the use and occupation of his house inconvenient or uncomfortable according to the ordinary requirements of mankind. These cases do lay down in clear terms that it is not enough to allege and prove that there has been a reduction in the quantum of air and light in the physical sense by the acts complained of by the plaintiffs. The plaintiff must further prove that the curtailment of right has been so substantial as to render a comfortable living or use of the residence of course judged by ordinary notions, impossible.
11. There is no manner of doubt that both the courts below have issued the injunction as a matter of course without calling their attention to this vital aspect of the case. They have issued the injunction on a mere finding that the plaintiff-respondent has been receiving light and air through the ventilators for a certain length of time. This was clearly insufficient to entitle the plaintiff-respondent to a decree for injunction, in view of the provisions of Sections 33 and 35 of the Easements Act as interpreted by this court in the aforesaid decisions.
12. Learned counsel for the respondent submitted that the view taken by this court in the aforesaid decisions requires reconsideration as it seems to have overlooked the impact of clause of Section 23. I cannot agree. In the case reported in : AIR1933All493 , Shambhu Prasad v. Mahadeo Prasad, the Division Bench did notice the effect of Section 28. However, the Division Bench observed that Section 28 could not be read in isolation and that if Sections 28, 33 and 35 were read together, it was clear that the intention was that an injunction could be issued only upon the plaintiff's satisfying the court that there had been substantial interference with his physical comfort. I find myself in complete agreement, with respect, with the view expressed in each one of these decisions. In any case, the pronouncement of the Supreme Court in the case reported in : AIR1971SC1878 puts the issue beyond any controversy.
13. The courts below, have in my opinion, committed a patent, error of law and jurisdiction in granting a decree for mandatory injunction as well as perpetual injunction against; the defendant-appellant in regard to the right claimed bv the plaintiff-respondent to receive light and air through the ventilators in question without having regard to the aforesaid settled legal position. The decrees passed by the court below are therefore, liable to be set aside subject to the affirmance of the findings of the lower appellate court mentioned above.
14. For the reasons stated above, whereas the cross-objection fails and is dismissed, the second appeal succeeds and is allowed. The judgments and decrees passed by the courts below are set aside. The suit is remanded to the trial court for being disposed of according to law, having regard to the observations made in this judgment. The parties shall bear their own costs of this court as well as of the courts below. The parties shall also bear their own costs of the cross-objection.
15. The trial court may also permit the parties to lead fresh evidence on the issue mentioned above, namely, whether the plaintiff has suffered any substantial injury or inconvenience as a result of the constructions of the defendants. The fresh evidence shall, of course, have to be within the specific cases pleaded by the parties.