H.R. Khanna, J.
1. This regular second appeal filed by Davinder Kumar Jain plaintiff is directed against the judgment of learned Additional Senior Subordinate Judge, Delhi, affirming on appeal the decision of the trial Court. 2. The brief facts of the case are that Davinder Kumar Jain appellant and Shrimati Chatro Devi respondent own adjoining houses in Mandirwali Lane, Subzimandi, Delhi. The dispute between them relates to the access of light and air through the two windows in the appellant's house, one on the second storey and the other oh the third storey. The present suit was filed by the appellant on the allegation that he had a right of casement for access of light and air through the two windows against the defendant and had been enjoying the use of light and air peaceably and without interruption as of right in the past. So far as the right of easement in the window on the third storey was concerned it was based on the claim that the appellant had been getting light and air through that window for a period of 25 years before the suit and the same had also been granted in favour of the predecessor of the appellant by the predecessor of the respondent by means of a compromise decree dated 5th January 1937. As regards the right of easement through the window on the second storey, the appellant claimed that he had got the same as a result of the compromise decree. The appellant also added that he had been having access of light and air through that window for a period of more than 181/2 years. The present suit was filed on 16th June 1955 on the ground that Shrimati Chatro Devi respondent had started construction on the second storey of her house and was causing material obstruction to the ingress of light and air through the window on the second storey and was also threatening to raise a construction in front of the window on the third storey. Mandatory injunction was sought enjoining the respondent to remove the four-walls in front of the window on the second storey. Prohibitory injunction was further sought restraining the respondent from constructing any room or building in front of the two windows so as not to interfere with the appellant's access of light and air through those windows.
3. The suit was resisted by the respondent who denied the allegations of the appellant. It was averred that the room in front of the window on the second storey had already been completed. Plea was also taken that the act of the respondent had not interfered in any way with the appellant's comfortable residence in his house.
4. Material issues for the purpose of the present appeal are issues Nos. 2 to 5, which arc as under:
(2) Has the plaintiff acquired a right of casement of light and air through the khirkees in dispute by prescription?
(3) Has the plaintiff acquired a right of easement mentioned in issue No. 2 by grant from the predecessor-in-interest of the defendant?
(4) If issue No, 3 is proved, is not that grant binding upon the defendant?
(5) Whether the closing of the Khirkees in dispute would cause an actionable nuisance to the plaintiff?
The trial Court found that the appellant had acquired a right of easement in respect of the window on the third storey by prescription as well as by grant. As regards the window on the second storey the finding was that the appellant had acquired a right of easement by grant and not by prescription. Finding was further given that the construction of a roof on the four-walls in front of the window on the second storey had resulted in actionable nuisance. The trial Court, however, declined to grant the relief for the demolition of the roof as there was no prayer for that in the plaint. The trial Court also declined to order the demolition of the four-walls as in its view those walls without the roof did not prevent the ingress of light. So far as the window on the third storey was concerned the finding was that there was no obstruction to that window and the respondent did not intend to cause any. The appellant was granted a decree for perpetual injunction restraining the respondent from causing any obstruction to the appellant's right of use of light and air from the window on the third storey and also restraining the respondent from closing the window on the second storey in any manner. The appellant's suit for mandatory injunction was dismissed.
5. On appeal against the decision of the trial Court having been filed by the plaintiff-appellant and cross-objections having been put in by the defendant-respondent, the learned Additional Senior Subordinate Judge affirmed the finding of the trial Court with regard to the acquisition of the right of easement by the appellant in respect of the two windows in question. It was also found that the construction of the roof had been completed by 10 or ll a.m. on 16th June 1955 on which day the present suit was filed. The Additional Senior Subordinate Judge then dealt with the question of the relief to be granted to the appellant, and in this connection found that the obstruction to the ingress of light and air through the window on the second storey was not such as would injure the property of the appellant in point of value, comfort, convenience or usefulness. The learned Additional Senior Subordinate Judge, accordingly, upheld the decision of the trial Court declining to grant mandatory injunction in favour of the appellant for the removal of walls and roof in front of the window on the second storey. The result was that both the appeal and cross-objections were dismissed.
6. In second appeal the question, which has been agitated on behalf of the plaintiff-appellant, is that the Court below was not justified in declining to grant the relief of mandatory injunction for demolition of the four walls and the roof in front of the window on the second storey. After hearing Mr. Chadha on behalf of the appellant and Mr. Jain Dass on behalf of the respondent I am of the view that the decision of the lower Appellate Court calls for no interference.
7. The first contention which has been raised by Mr. Chadha on behalf of the appellant is that the lower Appellate Court made an error in reversing the finding of the trial Court that the construction of the roof on the walls in front of the window on the second storey had resulted in actionable nuisance. It is urged that the finding of the trial Court in this respect was based upon its inspection of the spot. The lower Appellate Court while reversing the finding observed that the purpose of local inspection was to understand evidence and not to make it a substitute for the evidence which has been adduced by the parties. After giving the matter my consideration. I am of the view that the approach of the lower Appellate Court to the matter was in conformity with law. Inspection of the spot in the present case was obviously made under the provisions of Order XVIII, Rule 18 of the Code of Civil Procedure, according to which the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. A Judge inspecting a spot has to make a note of what he actually observes at the spot and the note would be given its due weight in assessing the veracity of the evidence adduced by the contending parties. The inspection note can, however, be no substitute for the evidence but can only be used for assisting the Court in appreciating the evidence. As observed in Amratlal v. Land Acquisition Officer, Ahmedabad, AIR 1945 Bom 302.
'In most cases it would be desirable for the Judge to confine his notes to the facts which he observes without recording his impressions or opinions. He is entitled to form his impressions, but if he records them in the notes, the parties should have the opportunity to meet them in their arguments and he should not decide the case merely from his impressions without giving due weight to the evidence. No doubt the Court of appeal would attach due weight to what the Judge observes in his inspection, but the purpose of local inspection is not to make it a substitute for the evidence but to assist in its appreciation.'
In the present case although a number of witnesses had been produced but the trial Court did not discuss their evidence and based its finding about the roof constituting actionable nuisance just on its inspection of the spot. The opinion of the trial Court in this respect could not be of a conclusive nature, because, as remarked by the lower Appellate Court, the trial Court had never the occasion to see the light in the room before the present obstruction. The lower Appellate Court discussed the evidence and thereafter came to the conclusion that the decrees in the light and air in the appellant's room, as a result of the construction of the walls and the roof, was not to such an appreciable extent as to injure his property in point of value, comfort, convenience or usefulness having regard to all the surrounding circumstances. This is a finding of fact and as it has been arrived at on consideration of the material on record, it cannot, in I my opinion, be interfered with in second appeal.
8. I may observe that Mr. Chadha cited two authorities Lakmidas Khushal v. Bhaiji Khushal (1911) ILR 35 Bom 317, and Buckingham v. Daily News, Ltd., 1956-2 All E.R. 904, in support of his contention that a judgment is not bad because it was based upon the inspection of the spot by the judge. So far as the case of (1911) ILR 35 Bom 317 is concerned, the dispute related to the right of passing the rain-water. The Subordinate Judge was told that there was a passage which had existed all along and still existed, and which could be seen at any moment by the eye. The judge thereafter inspected the spot and found that there was no passage at the spot. It would, thus, appear that the decision of the case rested upon what actually existed at the spot and not upon the past state of affairs. In the present case, however, we are concerned with the extent of diminution of light and air as a result of the construction of the walls and the roof, and this necessarily postulates the consideration as to how much light and air were received through the window in question in the past. A mere inspection of the spot, in the, circumstances, would not have proved conclusive. In the case of (1956) 2 All E.R. 904, the judge did not rely on his own notion to the exclusion of other evidence and had not given undue weight to the impression which he had formed on the view. As such, the appellant can hardly derive any assistance from the above authority.
9. Mr. Chadah has then argued that the appellant was entitled to the same amount of light and air through the window of the second storey as was being received by him at the time appellant was granted the right of easement in respect of that window by the compromise decree dated 5th January, 1937. Reference in this connection has been made to Section 28 of the Easements Act and clause (b) contained therein. Relevant part of Section 28 reads as under:
'With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:
Easement, of necessity-- x x
Other easements -- The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired.
In the absence of evidence as to such intention of purpose --
(a) Right of way.
(b) Right to light or air acquired by grant: the extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testainentary instrument was made:
(c) Prescriptive right to light or air.
x x x x x(d) Prescriptive right to pollute air and water.
x x x x x(e) Other prescriptive rights.x x x x x
In this respect I find that sections 33 and 35 of the Easements Act read as under:
'33. Suit for disturbance of easement.--The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of an easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to the plaintiff.
Explanation I.--The doing of any act likely to injure the plaintiff by affecting the evidence of the the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34,
Explanation II.--Where the easement disturbed is a right to the free passage of light passing to the opening in a house, no damages is substantial within the meaning of this section, unless it falls within the first Explanation or interfere 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 the institution of the suit.
Explanation III. -- Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.'
'35. Injunction to restrain disturbance. -- Subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), 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:
(b) If the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement.'
As observed on page 701 of Basu's Law of Injunctions, Second Edition, sections 28, 33 and 35 of the Easements Act have to be read together. Since section 28 of the Easements Act has not to be taken in isolation but has to be read along with the provisions of sections 33 and 35 of the Easements Act, it is obvious that a person complaining of the disturbance of his right of easement has in order to succeed in the suit, to show not only that there has been a disturbance of an easement or of any right accessory thereto, but has also to prove that the disturbance has actually resulted in substantial damage to him. It is further clear from Explanation II of Section 33 of the Act that no damage would be substantial in the case of right to the free passage of light through the opening of a house, unless--
(1) it is likely to injure the plaintiff by affecting the evidence of the easement by materially diminishing the value of the dominant heritage, or
(2) it interferes with the physical comfort I of the plaintiff, or
(3) prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to the institution of the suit.
Explanation III of section 33 shows that in the case of right to the free passage of air through the opening of a house the damage would be substantial if it interferes materially with the physical comfort of the plaintiff, even though it is not injurious to his health.
10. On the findings of fact arrived at by the lower Appellate Court it cannot, in my opinion, be said that the act of the respondent has caused substantial damage to the appellant in so far as his right of easement for ingress of light and air through the window on the second storey is concerned. The Court below has found that the window in question on the second storey has not been closed and the respondent has kept another window opposite to the window in question. The appellant has already got three doors in the room which contains the window in question on the second storey. The lower Appellate Court has also taken into consideration that the houses of the parties are situated in a lane in an old locality like Subzi Mandi. Keeping in view all these factors the lower Appellate Court has found, as already mentioned earlier, that the decrease in the light and air in the appellant's room was not to such an appreciable extent as would injure the property of the appellant in point of value, comfort, convenience or usefulness. In the face of this finding it cannot be held that the appellant has suffered substantial damage by the construction of the walls and roof in front of the window on the second storey.
11. A faint-hearted attempt was also made by Mr. Chadha to argue that the lower Appellate Court was not justified in taking into account the locality in which the houses of the parties are situated for determining the quantum of light and air to which the appellant was entitled through the window in question. There is no force in this argument. In considering the quantum of light and air one has to take into account the ordinary notions of mankind and the test is that there must be a substantial privation of light and air according to the ordinary notions of mankind. One has necessarily in this context to look to the locality and surroundings of the property in question and it is obvious that one cannot import the standards obtained in sparsely inhabited areas of Civil Lines wherein the houses are surrounded by lawns and apply them to densely congested areas like lanes in the heart of the city. I may in this context refer to the following observations in the case of Colls v. Home and Colonial Stores, Ltd. (1904) A. C. 179 :
'The right of the owner or occupier of a dominant tenement to light is based upon the principle stated by Lord Hardwick in 1752 in Fishmongers' Co. v. East India Co. (1752) 1 Dick 163 : 21 ER 232, that he is not to be molested by what would be equivalent to a nuisance. He does not obtain by his easement
a right to all the light he has enjoyed. 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. That is the basis on which the decision of this House proceeded.' The above observations were followed by their Lordships of the Judicial Committee in an appeal from Calcutta High Court in P.C.E. Paul v. W. Robson AIR 1914 P.C. 45. See also in this connection Sohan Singh v. Jagat Singh AIR 1928 Lab. 980. I have, therefore, no hesitation in repelling the contention that locality and surroundings cannot be taken into consideration in deciding the quantum of light and air.
12. The appeal, consequently, fails and is dismissed, but, in the circumstances, I leave the parties to bear their own costs.