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Dwarka Prasad and anr. Vs. Bishambhar Dayal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All191
AppellantDwarka Prasad and anr.
RespondentBishambhar Dayal
Cases ReferredPeter Charles. Ernest Paul v. William Robson
Excerpt:
.....than 20 years prior to the institution of the suit and, as such, the plaintiff had not acquired a right of easement with respect to light and air as alleged by him, and that the constructions complained of did not materially interfere with the right of easement alleged by the plaintiff. it was further of opinion that if the defendants made some other constructions above the constructions sought to be demolished, there will be a substantial interference with the right of easement enjoyed by the plaintiff and as, such, it passed a decree in favour of the plaintiff perpetually restraining the defendants from making any constructions over the constructions already made by them. it is a well-settled proposition of law that the owner of a dominant tenement does not obtain by his easement a..........to make some other constructions above the constructions sought to be demolished, the plaintiff's right of easement will be prejudicially affected and, as such, the plaintiff prayed for a perpetual injunction restraining the defendants from making any further constructions calculated to block the window in the plaintiff's room.3. the defence to the suit was that the room on the first floor of the plaintiff's house was built less than 20 years prior to the institution of the suit and, as such, the plaintiff had not acquired a right of easement with respect to light and air as alleged by him, and that the constructions complained of did not materially interfere with the right of easement alleged by the plaintiff.4. the trial court came to the conclusion that the room and the window in.....
Judgment:

Iqbal Ahmad, J.

1. The parties to this appeal are neighbours. The defendants' house is to the south of the plaintiff's house. On the first floor of the plaintiff's house there is a room in which there are many doors and there is a window towards the south of that room. Close to this window the defendants have made certain constructions by which the lower portion of the window to the extent of about 9 inches has been blocked. The defendants also intend to make some other constructions above the construction just referred to.

2. The suit giving rise to this appeal was filed by the plaintiff-respondent mainly on the allegation that the constructions made by the defendants interfered with the enjoyment of light and air through the window in the southern wall of the plaintiff's house and as such, the plaintiff was entitled to a decree for demolition of the said constructions. It was further alleged by the plaintiff that, if the defendants were allowed to make some other constructions above the constructions sought to be demolished, the plaintiff's right of easement will be prejudicially affected and, as such, the plaintiff prayed for a perpetual injunction restraining the defendants from making any further constructions calculated to block the window in the plaintiff's room.

3. The defence to the suit was that the room on the first floor of the plaintiff's house was built less than 20 years prior to the institution of the suit and, as such, the plaintiff had not acquired a right of easement with respect to light and air as alleged by him, and that the constructions complained of did not materially interfere with the right of easement alleged by the plaintiff.

4. The trial Court came to the conclusion that the room and the window in dispute existed for more than 20 years and, as such, the plaintiff had the right of easement claimed by him; but the constructions made by the defendants did not substantially interfere with the enjoyment of air and light through the window referred to above and, as such, it dismissed the suit for demolition of the constructions made by the defendants. It was further of opinion that if the defendants made some other constructions above the constructions sought to be demolished, there will be a substantial interference with the right of easement enjoyed by the plaintiff and as, such, it passed a decree in favour of the plaintiff perpetually restraining the defendants from making any constructions over the constructions already made by them.

5. Both parties were dissatisfied with the decree of the trial Court, with the result that the defendants filed an appeal against that portion of the decree of the trial Court which was in favour of the plaintiff-respondent and the plaintiff filed a cross-objection with respect to the portion of the claim that was dismissed.

6. The lower appellate Court has upheld the decree of the trial Court in its entirety and has dismissed both the appeal and the cross-objection. The defendants-appellants assail the decree of the lower appellate Court on the ground that the lower appellate Court has misdirected itself in law in proceeding on the assumption, that the mere fact that any constructions contemplated by the defendants will materially diminish the light and air received through the window in dispute, is a valid ground for granting the injunction prayed for by the plaintiff-respondent. It is urged that in the absence of a definite finding to the effect that the contemplated constructions would amount to an actionable nuisance, a decree restraining the defendants from making any constructions should not have been passed. It is a well-settled proposition of law that

the owner of a dominant tenement does not obtain by his easement a right to all the light he has enjoyed during the period of prescription. He obtains a right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings.

7. [vide Peter Charles. Ernest Paul v. William Robson [1915] 42 Cal. 46.] It has also been held in the case just noted that

there is no infringement of the easement acquired by ancient lights unless the act which is done amounts to a nuisance.

8. Reading the judgments of the Courts below it appears to me that neither of those Courts had in view this pronouncement of their Lordships of the Privy Council in the case just cited. Both the Courts below seem to have approached the consideration of the question on the assumption that 'a material diminution' of the light and air received through the window in question could furnish a cause of action to the plaintiff-respondent for maintaining a suit of the description that he filed against the defendants appellants. In this the Courts below were clearly wrong. The lower appellate Court observes in the course of its judgment that

as the second storey upon this room of the defendants would block the plaintiff's window altogether, the plaintiff is entitled to get the injunction prayed for.

9. The mare fact that the making of a room would block the plaintiff's window would not by itself entitle the plaintiff-respondent to obtain a decree for perpetual injunction of the description granted to him by the Courts below against the defendants-appellants. In the absence of a definite and clear finding that the constructions contemplated by the defendants would amount to a nuisance, the plaintiff-respondent would not be entitled to a decree in the terms of the decrees of the Courts below.

10. As in my opinion the lower appellate Court without correctly appreciating the law on the subject, has recorded the findings which are not enough for the disposal of this appeal, I cannot decide this appeal without having a finding on the following issue from the lower appellate Court:

11. Whether or not the constructions contemplated to be made by the defendants-appellants over the room already built by them will amount to a nuisance?

12. In deciding this issue the lower appellate Court should remember that unless it comes to the conclusion that by the constructions the house of the plaintiff-respondent will become unfit

for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings,

it cannot be said that the contemplated constructions by the defendants would amount to a nuisance.

13. The parties will be at liberty to adduce fresh evidence. The lower appellate Court should return the finding to this Court within two months from this date. On return of the finding the usual ten days will be allowed for filing objections.


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