1. The facts leading to this appeal briefly stated are as under:
The present respondent filed a suit in the court of the learned Civil Judge at Limbdi alleging that they were the owners of a house consisting of two rooms facing east having continuous back wall on the west in Ambali Sheri locality at Limbdi. On the west of this wall, was a naveli or narrow lane 218'- 8' long and 3'-6' broad. On the other side of the Naveli was the back wall of the defendant's house. According to the plaintiffs they had one window measuring 2'x2' in the back wall of their house through which a person could go in the navel and they had two ventilators in each of the two rooms. According to them the two ventilators in the southern room had been placed two to three years ago whereas the two ventilators in the northern room and the window referred to above existed for a number of years. The plaintiffs claimed a right to get light and air through these apertures and they claimed a right of way to enter the naveli for the purpose of repairing their back wall and placing tiles on the roof of their house. However, on 12th April, 1965 the present appellant constructed a pakka wall of bricks just touching the back wall of the plaintiffs thus entirely closing all the apertures of the plaintiffs and preventing the plaintiffs from entering the naveli. It was alleged that the defendant had placed a lock on the door on the south of the naveli as a result of which the plaintiffs could not go there. The plaintiffs prayed for a mandatory injunction directing the defendant to remove the southern wall and to keep the door on the south of the naveli open permanently or in the alternative to give a key of the lock to the plaintiffs. The defendant by his written statement Exh. 10 denied that there was a window or there were any ventilators or apertures in the back wall of the plaintiffs. According to him all these apertures had been recenly put by the plaintiffs without having a right to do so. He denied that the plaintiffs had a right to go in the naveli for the purpose of repairing their back wall or for any other purpose. Accordingly, the defendant contended that he had every right to put a pakka brick wall against the plaintiff's back wall and to enclose the naveli. The learned trial Judge decreed the suit in part and directed the defendant to keep open an area of 4'-5' in his wall opposite the window in the plaintiffs' back wall. Against the said judgment and decree an appeal was preferred in the District Court, Surendranagar wherein the following points were raised for determination:
1. Whether it is proved that the plaintiffs had acquired a right of easement to get light and air through the window marked 'R' in their southern room? and
2. Whether the trial court erred in granting a mandatory injunction against the defendant in respect of this window? The learned District Judge answered point No. 1 in the affirmative and point No. 2 in the negative. The learned District Judge, therefore, dismissed the appeal confirming the findings on all issues recorded by the trial court. Against this judgment and decree of the District Court the original defendant has preferred the present appeal. Mr. P. M. Ravel, learned Advocate for the appellant conceded that he could not agitate in this court against the findings of fact recorded by the lower courts. However, he urged that both the courts had erred in law in granting a mandatory injunction merely on a finding that the plaintiff had acquired a right of easement to get light and air through the window marked 'R' in their southern room. Mr. Ravel submitted that under Section 33 of the Indian Easements Act it was not enough for the plaintiff to succeed by merely proving that they had a right of easement to get light and air through the window. In order to get a mandatory injunction it was further necessary for the plaintiffs to establish that the disturbance of the easement had actually caused substantial damage to the plaintiff as described in Explanations I, II and III appended to Section 33. In the instant case Mr. Ravel urged that there is no averment with regard to the substantial damage nor was any issue raised by the court in this connection. Thus even though plaintiff's right of easement is held proved by both the courts and it would be binding on the defendant the order passed by the Courts below directing the defendant to remove the wall as per the particulars mentioned in the decree is wrong. Mr. Ravel submitted that it was necessary for the plaintiff to establish that the wall constructed by the defendant materially interfered with the physical comfort of the -plaintiff or prevents him from carrying on his accustomed business in the dominant heritage.
2. Mr. Mangaldas M. Shah, learned Advocate for the respondents on the other hand urged that if the case falls under the first part of Explanation I. appended to Section 33 namely if the doing of any act likely to injure the plaintiff by affecting the evidence of the easement, substantial damage within the meaning of Section 33 could be said to have been caused to the plaintiff. He, therefore, urged that there was no reason to interfere with the decree of the lower court.
3. It may be noted that in plaint, para 5, the plaintiff has merely alleged that on 12-4-65 the defendant has constructed a pucca brick wall just adjacent to his hack wall, as a result his windows and ventilators were completely closed and whatever the air and light he was receiving through the same are extinguished. In the relief clause, therefore, he has prayed for the removal of the whole wall. Even in his evidence before the court there is nothing to show whether there were other ventilators or doors in the other room through which the plaintiffs are able to get sufficient light and air in the back room, The learned trial Judge as well as the learned District Judge did not frame any issue about substantial damage caused to the plaintiffs as a result of the act of the defendant within the meaning of Section 33 of the Indian Easements Act.
Section 33 reads as under:
'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 the easement or of any right accessory there to: 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 easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section 33 and Section 34.
Explanation II: Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes 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 instituting 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.' Section 35 runs as under:
' Subject to the provisions of the Spe cific Relief Act, 1,877, Sections 52 to 57 (both inclusive), an injunction maybe 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 threat ened or intended, when the act threatened or intended must necessarily, if performed, disturb the easement.'
A combined reading of both these Sec tions 33 and 35 of the Indian Easements Act together with the relevant provisions of Sections 52 to 57 of the Specific Relief Act, 1877, now Section 39 of the Specific Relief Act, 1963 will go to show that in order to succeed it is not enough for the plaintiff to establish that he had -an easement of right to get free passage of air and light through the windows as mentioned in the Commissioner's map. He must further prove that this disturbance has actually caused substantial damage to him. Substantial damage is explained in Explanations I, II and III appended to Section 33. It says that the doing of any 'Act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section. Be sides, where the easement disturbed is a right to free passage of light and air. The plaintiff further has to prove that the disturbance would interfere with his physical comfort or would prevent him from carrying on his accustomed business as beneficially as he had done previous to the institution of the suit. After this is established the court has further to consider whether it should grant mandatory injunction or the awarding of compensation would meet the ends of justice. In this connection it will be worthwhile to refer to the case of Ehimaji Vasudev v. Yeshvant Changagouda, AIR 1929 Bom 388 wherein it was observed as under:
'To constitute an actionable obstruc tion of ancient light entitling a person to obtain mandatory injunction substantial Privation rendering the occupation dis comfortable and not merely sensible obstruction is necessary,'
In the case of P. C. E. Paul v. W. Robson, AIR 1914 PC 45 it was held that the decision in Jolly v. Kine's case (1907 AC 1) was an authoritative exposition of the decision in Colls's case, (1904 AC 179) and it was established that the law as formulated by Lord Davey was the law laid down by that decision namely that the owner 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 in habitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings. In the case of Chapsibhai Dhaniibhai Dand v. Purshottam, : AIR1971SC1878 it was observed as under.
''Section 33 of the Indian Easements Act provides that the owner of any interest in the dominant heritage may institute a suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff. Under Explanation 11 read with Explanation I to the section, where the disturbance pertains to the right of free passage of light passing through the openings of the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage. Where the disturbance is to the right of the free passage of air, damage is substantial if it interfers materially with the physical comfort of the plaintiff.'
Mr. Mangaldas Shah for the respondents, however, urged that if the defendant constructed a wall and as a result the right of easement of the plaintiffs was affected his case would fall within the Explanation I to Section 33 and it could be said that substantial damage was caused to the Plaintiff and he would be entitled to a mandatory injunction. I am unable to agree with him. The words affecting the evidence of the easement' used in Explanation I would not apply to the disturbance of an easement regarding right to the free passage of air or light. Illustration 'A' seems to indicate that this part would apply to the easement of right of way. As already explained by the Supreme Court in the case referred to above, under Explanation II read with Explanation I to the section where the disturbance Pertains to the right of free passage of light no damage would be substantial unless it materially diminished the value of the dominant heritage and where the disturbance was to the right of free passage of air damage was substantial if it interferred materially with the physical comfort of the plaintiff. In my opinion, both the courts below were wrong in granting a mandatory injunction in the absence of any issue or evidence with regard to the substantial damage caused to the -plaintiff as a result of the construction of the wall by the defendant in the light of Explanations I, II and III appended to Section 33 of the Indian Easements Act. Besides, the court has to consider before granting a mandatory injunction whether interest of justice would be served by awarding suitable compensation to the plaintiff instead of granting mandatory injunction. As both these as pects were not considered by the courts below there is patent error of law and the decrees passed by them could not be sustained so far as it relates to the mandatory injunction directing the defendant to remove the wall at the portion marked 'R' shown in the map Exh. 29. As the decisions on other issues about the existence of the ventilators or apertures involve pure questions of fact it would not be open to this court to disturb the said findings as it is not shown that the view taken by the courts below is perverse or contrary to the evidence on record. The decree of the First Appellate Court confirming the decree of the trial Court therefore so far as the findings on other issues are concerned, is confirmed. The said decree, however, confirming the decree of the trial Court granting mandatory injunction will have to be set aside and the suit remanded to the trial Court with a direction to proceed further in the light of the observations made above In the above view of the matter, the cross objections filed by the respondents do not survive.
4. In the result, I pass the following order:
The decree of the learned District Judge, Surendranagar passed in Civil Appeal No. 113 of 1966 confirming the decree of the trial Court granting relief of mandatory in junction to the plaintiffs is hereby set aside and the suit is remanded to the trial Court with a direction to frame proper issues in order to find out if the plaintiff has suffered substantial damage as a result of the closing of the window by the construction of the wall by the defendant in respect of his right to the free passage of air and light through the window in question and whether ends of justice would be served by awarding adequate compensation to the plaintiff without granting a mandatory injunction. It will be open to both the parties to lead additional evidence with regard to these issues only. The rest of the decree of the first Appellate Court confirming the decree of the trial Court is confirmed. In view of the facts of this case, there will be no order as to costs in this appeal. The cross-objections also stand dismissed with no order as to costs.
5. Order accordingly.