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Suraj NaraIn Vs. Kalyan Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All430; 117Ind.Cas.618
AppellantSuraj Narain
RespondentKalyan Das
Cases ReferredColls v. Home and Colonial Stores Ltd.
Excerpt:
- - 3. this was clearly a finding of fact......by the plaintiff-appellant for a mandatory injunction. we are only concerned with three out of six skylights, namely those marked a, b and c in the map filed by the plaintiff. these skylights give light and air to certain small rooms. the respondent has built a house which interferes with the slight and air hitherto received from these skylights.2. the defence in respect of the three skylights was that the defendant's house left three other skylights which afforded sufficient light and air to the rooms apart from skylights a, b and c. the trial court decreed the suit on the ground that the plaintiff was entitled to that quantity of light and air that had been accustomed to enter these skylights, a, b and c during the previous 20 years. in appeal the lower appellate court dismissed the.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-appellant for a mandatory injunction. We are only concerned with three out of six skylights, namely those marked A, B and C in the map filed by the plaintiff. These skylights give light and air to certain small rooms. The respondent has built a house which interferes with the slight and air hitherto received from these skylights.

2. The defence in respect of the three skylights was that the defendant's house left three other skylights which afforded sufficient light and air to the rooms apart from skylights A, B and C. The trial Court decreed the suit on the ground that the plaintiff was entitled to that quantity of light and air that had been accustomed to enter these skylights, A, B and C during the previous 20 years. In appeal the lower appellate Court dismissed the suit as regards these skylights on the ground that the disturbance did not cause substantial damage to the plaintiff.

3. This was clearly a finding of fact. The appellants counsel has, however, taken up the position that, although damages in respect of disturbance of an easement can only be granted whore substantial damage is proved, nevertheless an injunction may be granted irrespective of substantial damage. He based his contention on the language of Section 28(c), Easements Act, which declares that the extent of a prescriptive right to the passage of light or air to an opening is that quantity of light or air which has been accustomed to enter that opening during the prescriptive period irrespectively of the purposes for which it has been used. He supports his contention by reference to the case of Kunni Lal v. Kundan Bibi [1907] 29 All. 571. That decision was the decision of a single Judge. In it Aikman, J. refused to follow the English decisions of Colls v. Home and Colonial Stores, Ltd., [1901] A.C. 179 and Kine v. Jolly [1905] 1 Ch. 480 on the ground that Section 28(c), Easements Act, provided a different test as regards what could be claimed by reason of a prescriptive easement to that applied by the English decisions referred to. The appellant's counsel is no doubt supported by that decisions but I am unable to follow it.

4. In the case of Durga Prasad v. Lachhmi Narain A.I.R. 1924 All. 394, Kanhaiya Lal, J., did not follow it. He held that the effect of Sections 33 and 35, Easements Act, only allowed a suit where disturbance has actually caused substantial damage as defined in the former sections. He did not attempt to distinguish Kunni Lal v. Kunda Bibi [1907] 29 All. 571 except by saying that the circumstances of the latter case might have justified an order for the removal of the obstruction.

5. The reason why I am unable to follow Kunni Lal v. Kundan Bibi [1907] 29 All. 571 is that in that judgment Aikman, J., entirely ignored Section 35(a), Easements Act. Section 35 enacts when an injunction may be granted. Clause (a) refers to a mandatory injunction and Clause (b) to a perpetual injunction. The section is unfortunately worded. In Clause (a) a mandatory injunction is allowed when compensation for disturbance might be recovered under Section 33. The word 'when' must be construed to mean 'when and where,' because it would be useless to prescribe that an injunction could be granted when damages can be claimed under Section 33, if damages under Section 33 could not be claimed. The effect of the clause is, therefore, only to allow an injunction where substantial damages is proved. This conclusion also follows from Section 54, Specific Relief Act, which only allows an injunction when pecuniary compensation would not afford adequate relief. It follows that an injunction is only an alternative within the discretion of the Court and is not an independent form of relief.

6. The view which is here taken by me was adopted by Bench of the Madras High Court in Esa Abbat Sait v. Jacob Haroon Sait [1910] 33 Mad. 327. It was there pointed out that although the Indian legislature in Section 28(c) had adopted a view as to the extent of a prescribed right to the passage of light and air to an opening which was not in accordance with the view taken by the House of Lords in Colls v. Home and Colonial Stores Ltd. [1901] A.C. 179, yet the Act had cut down the effect of the wider definition of the prescriptive right by only allowing any remedy where the disturbance caused substantial injury. In other words, it held that the Easements Act had given a, right without a co-extensive remedy. This appears to be in conflict with the general principle ubi jus ibi remedium. It is obviously desirable that no right should exceed the limits of the remedy to enforce it. This criticism, however, of the Basements Act cannot affect the interpretation to be put on that Act. It is for the legislature to avoid disagreement between the extent of a right and the extent of the remedy, but it is for the Courts to confine themselves to the remedy allowed by the statute.

7. For the above reasons, I find that the lower appellate Court was correct in rejecting the suit for an injunction on the ground that the disturbance caused no substantial damage. No argument has been addressed to me (and I do not think that the facts would permit any argument) that the lower appellate Court misdirected itself in determining that there had been no substantial damage, The consequence is that this appeal fails and is dismissed with costs.


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