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Musammat Chandan Kunwar Vs. NaraIn Alias Girdhari - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All542; 73Ind.Cas.531
AppellantMusammat Chandan Kunwar
RespondentNaraIn Alias Girdhari
Cases ReferredColls v. Home and Colonial Store Limited
Excerpt:
easement - light, easement of--measure of right. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]......this is a question of fact and that no question of law is raised. the decree which the successful decree-holder obtained directs the defendant to open the roshanians. it is a very unfortunate expression because the roshnadans are on the decree-holder's property and the decree did not mean that the defendant was to touch the decree-holder's property but to remove, the obstructions, which he has created, so as not to interfere with the plaintiff's right of light. the plaintiff complains that what the defendant has done in pretended compliance or attempted compliance with the decree does not in fact remove the obstruction or, in the words of the decree, 'open the roshandans.' the two grounds of appeal raised here are that there has been no compliance with the decree so far as the.....
Judgment:

Walsh, J.

1. I think this is a question of fact and that no question of law is raised. The decree which the successful decree-holder obtained directs the defendant to open the roshanians. It is a very unfortunate expression because the roshnadans are on the decree-holder's property and the decree did not mean that the defendant was to touch the decree-holder's property but to remove, the obstructions, which he has created, so as not to interfere with the plaintiff's right of light. The plaintiff complains that what the defendant has done in pretended compliance or attempted compliance with the decree does not in fact remove the obstruction or, in the words of the decree, 'open the roshandans.' The two grounds of appeal raised here are that there has been no compliance with the decree so far as the roshandans are concerned and that the decree entitles the decree-holder to light at an angle of 45 degrees which he has not got. I think the Latest authority in principle is to be found in the decision of the House of Lords in Colls v. Home and Colonial Store Limited (1904) A.C. 179 : 73 L.J. Ch. 484 : 90 L.T 687 : 53 W.R. 30 : 20 T.L.R. 475, which certainly altered the view of the law which had been entertained up to that date. It is clear law that there is no rule defining the measure of the dominant owner's right or requiring an angle of 45 degrees through which the rays of the sun are to be received. The principle laid down by the House of Lords is that there must be a substantial privation of light enough to render the occupation of the house uncomfortable according to ordinary notions. That, as Lord Halsbury points out, must differ considerably in the City of London and in the country and obviously differ very considerably in abaais or towns in these provinces. All the foregoing observations really mean that it is a question of degree or fact in each case. In this case the Amin appointed by the Munsif reported that the decree had been complied with and the Munsif agreed with him. In appeal the learned District Judge appointed a Commissioner who reported on the 18th July. He says 'as for compliance with the terms of the decree if it means that light and air may be allowed to the appellant I have seen the room which has the roshandan there, sufficient light and air come through them.' On this the Court below has found that the decree has been complied with. That is a finding of fact and I cannot interfere. The appeal is dismissed with costs.


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