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Gur Prasad Mukerji Vs. Bishun Dut - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in79Ind.Cas.349
AppellantGur Prasad Mukerji
RespondentBishun Dut
Cases ReferredPaul v. Bobson
Excerpt:
easement - agreement not to block window--diminution of light and air--servient owner, position of. - - 1. this was a suit by the plaintiff to restrain the defendant from diminishing the light and air enjoyed by a window belonging to the plaintiff. bishun dat then complained that gur prasad mukerji had un-authorisedly opened the two widows in his house which looked over the plaintiff's property......for that agreement of the parties the present plaintiff would not have acquired any prescriptive right to light and air in respect of that window. in effect, the agreement following on the first litigation did give to that window in our opinion the character of an ancient light. that being so, it having the advantages attaching to an ancient light it was also subject to its limitations and disadvantages, and the owner of the servient tenement is permitted to reduce the access of light and air provided he does not so diminish the light and air as to make it, in the language of paul v. bobson 24 ind. cas. 230 : 12 a.l.j. 1166 : 18 c.w.n. 933 : 27 m.l.j. 117 l.w. 561 : 16 m.l.j. 204 : (1914) m.w.n. 631 : 16 bom. l.r. 803 : 20 c.l.j. 553 : 42 c. 46 : 41 i.a. 180 (p.c.), less than the owner.....
Judgment:

1. This was a suit by the plaintiff to restrain the defendant from diminishing the light and air enjoyed by a window belonging to the plaintiff. The position appears to be that in 1913 Bishun Dat, the present defendant, was plaintiff in a suit against Gur Prasad Mukerji. Bishun Dat then complained that Gur Prasad Mukerji had un-authorisedly opened the two widows in his house which looked over the plaintiff's property. A compromise was arrived at by which Bishun Dat, secured the closing up of one of the windows entirely and the present plaintiff secured the maintenance of the southern window with liberty to heighten it by one foot if that were possible, otherwise to leaves it as it was before the suit. There was an agreement that the defendant would not block up that southern window. The exact words of the compromise were.-

'And he (Bishun Dat) will have no right to block this window' (Band Kame.)

2. Subsequent to the compromise the defendant erected a tin shed which, according to the plaintiff, was an infringement of this compromise. No oral evidence was given in the Court below but the Munsif went on two occasions to see whether 'by his proposed constructions the defendant would be materially interfering with the light and air which used to pass through the window.' He came to the conclusion that there would be a certain extent of diminution but sufficient light and air would be left for the purposes for which the room was used. The room was in fact used as a store house. The learned Munsif, relying upon the decision of Peter Charles Earnest Paul v. Robson 24 Ind. Cas. 230 : 12 A.L.J. 1166 : 18 C.W.N. 933 : 27 M.L.J. 117 L.W. 561 : 16 M.L.J. 204 : (1914) M.W.N. 631 : 16 Bom. L.R. 803 : 20 C.L.J. 553 : 42 C. 46 : 41 I.A. 180 (P.C.), came to the conclusion that he could not grant to the plaintiff the relief claimed. The lower Appellate Court reversed that finding which was in turn reversed by the decision of Mr. Justice Stuart. The point that Dr. Katju has argued is that this case must be decided on the basis of the particular agreement between the parties and not according to the general relationship which exists between a servient and dominant tenement. There is no doubt that this case ought to be decided according to the special agreement of the parties because but for that agreement of the parties the present plaintiff would not have acquired any prescriptive right to light and air in respect of that window. In effect, the agreement following on the first litigation did give to that window in our opinion the character of an ancient light. That being so, it having the advantages attaching to an ancient light it was also subject to its limitations and disadvantages, and the owner of the servient tenement is permitted to reduce the access of light and air provided he does not so diminish the light and air as to make it, in the language of Paul v. Bobson 24 Ind. Cas. 230 : 12 A.L.J. 1166 : 18 C.W.N. 933 : 27 M.L.J. 117 L.W. 561 : 16 M.L.J. 204 : (1914) M.W.N. 631 : 16 Bom. L.R. 803 : 20 C.L.J. 553 : 42 C. 46 : 41 I.A. 180 (P.C.), less than the owner of the dominant tenement required for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings. Dr. Katjn has contended that the agreement is absolute in its language and it for ever precluded the defendant from putting up any building which in the slightest possible decree diminished the free ingress of light and air. We think that this is not the proper construction of the agreement, for if that is what the parties had intended it would have been quite easy to express it and believing as we do that by this compromise the plaintiff obtained nothing more for that window than the character of a window which had a prescriptive right to light and air we are of opinion that the decision of the learned Judge of this Court was right and we, therefore, dismiss the appeal with costs.


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