1. This is a second appeal from the decision of the learned Subordinate Judge of Ghazipur. The action was for a mandatory injunction directing the defendant to remove a wall that he had built, on the ground that it interfered with existing easements belonging to the plaintiff. There were two houses, the plaintiff's, to the north, and the defendants', to the south. Originally the plaintiff had a kutcha house with a gabled roof, and she discharged water from her roof therefore both to the north and to the south. For this easement, that is, an easement to discharge half her water to the south she had acquired a prescriptive right. Some 15 years ago however the plaintiff changed her kutcha house into a pucca house and instead of the gabled roof she erected a flat roof of her house. In the new roof there was now only one hole which discharged all the water from the roof towards the south. The plaintiff also claimed an easement for the light of her room on the second-storey of her house. The position as regards this second-storey is somewhat obscure. The learned Judge does not come to a definite decision whether an easement has been acquired for the light to this second-storey or not. There is no finding whether the second storey has been built for the requisite period of 20 years or not It is unnecessary however for our purpose to send the case back for a decision on this point, as it is possible to decide this question on a point of the plaintiff claims that she is entitled law. Taking the second easement first, assuming that she has proved the right to the same quantity of light which she has always had in the room on the second-floor.
2. There were apparently two windows to the north, one to the east and one to the south, that is, one facing the defendant's land. The defendant has built his house right up against the house of the plaintiff so that the whole of the light of the window facing south has been obliterated. The learned Munsif finds in accordance with Section 33, explanation 2, Easements Act, that there is no material interference with the physical comfort of the plaintiff and that she is not prevented from carrying on her accustomed business on the: second-floor by the erection of the defendant's house and the blocking up of the window. The learned Judge in the lower appellate Court comes to the same conclusion, and upon this finding and the view taken on Sections 33. and 35, Easements Act, dismissed the suit with regard to this easement. The appellant contends however that Section 28(6), Easements Act, gives her an absolute prescriptive right to the same quantity of light and air through the window which she has always had. If Section 28 remained by itself this view of the law would undoubtedly be right. We have however to read Sections 28, 33 and 35 together. Section 33 clearly enacts that a suit for compensation for the disturbance of an easement only lies provided that the disturbance has actually caused substantial damage to the plaintiff. Explanation 2 takes this matter further and defines what is substantial damage and says substantial damage is that damage which:
Interferes materially with the physical comfort of the plaintiff or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
S. 35 enacts that:
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.
3. It is clear therefore in our opinion that damages may only be recovered if there has been substantial interference as described in explanation 2, and that an injunction can only be granted when compensation might be allowed under Section 33(2), that is, that both in the case of an action for damages or for an injunction simpliciter, it is necessary for the plaintiff to show conclusively that there has been substantial interference with her physical comfort, etc. This view of the case has' been supported in Lakhmi Naraln v. Ram Bharose : AIR1926All764 , and Gajadhar v. Kishori Lal AIR 1915 All 151. The latter is a Bench decision. There is one case in Kunni Lal v. Kundan Bibi (1907) 29 All 571, where a Single Judge decided the case on the view that Section 28 alone was enough and that a plaintiff had an absolute right, quite apart from damage, to an injunction. In that case however we note that Sections 33 and 35, Easements Act, were not discussed. We may further note that the English law on this is substantially the same, and has been considered in Colls v. Home and Colonial Stores (1904) AC 179 and Jolly v. Kine (1907) AC 1 and also in Paul v. Roson AIR 1914 PC 45, the last decision being a decision of the Privy Council, the English law being applied to Calcutta.
4. With regard to the claim in respect of the other easement, namely, the right to discharge water, the learned Judge in the Court below has come to a correct decision. The whole nature of the easement by the alteration of the gabled roof to a pucca flat roof has been completely changed. Formerly there was a right to sprinkle water the whole length of the eaves on one side of the house. The right to that easement was established. Now the water of the whole roof is discharged through one hole on to the defendant's land. A change of this character completely destroys the original easement, and it cannot be said that there is any prescriptive right for the new condition of affairs and the burden has not been increased sub-stantially. The claim therefore on this head must also be dismissed. The appeal on both points having failed, is dismissed with costs.