C.M. Lodha, J.
1. This is a plaintifis1 second appeal arising out of a suit for mandatory and perpetual injunction to restrain the defendants from disturbing certain easements of the plaintiffs.
2. The houses of the parties are situated contiguous to each other in the city of Udaipur. The plaintiffs' house is stated to be a four storeyed one. In the first storey there exist two windows in the eastern room and one 'Jali' in the western room. Similarly in the second storey there are two windows in the eastern room of the plaintiffs' house and also a 'Medi'. In the third and fourth storeys there are certain projections in the plaintiffs' house over-hanging the defendants' house and these projections have been described in local terms as 'Khumla' and 'Galmi'. The plaintiffs' case is that the defendants had obstructed the windows and the 'Jali' in the first storey and had threatened to disturb the plaintiffs' easements in the second, third and fourth storeys also. It was, therefore, prayed that the defendants be restrained by a perpetual injunction from disturbing the easements existing in the plaintiffs' house in the second, third and fourth storeys, and a mandatory injunction may also be issued for demolition of the tin-shed, and the wall constructed by the defendants in the first storey so as not to obstruct the windows and the 'Jail' existing in the plaintiffs' house and a perpetual injunction may further be issued against the defendants not to cause obstruction to the said windows and 'Jali'.
3. The defendants denied the existence of the aforesaid easements alleged by the plaintiffs.
4. After recording the evidence produced by the parties the trial court partly decreed the suit. The defendants filed appeal in the Court of District Judge. Udaipur, and the plaintiffs also filed cross-objections with respect to that part of their claim which had been disallowed by the trial court. The plaintiffs' cross-objection was dismissed but the appeal was allowed in part and the injunction issued by the trial court in respect of the windows existing in the second storey of the plaintiffs' house was set aside. The plaintiffs have, therefore, come in second appeal to this Court.
5. Learned counsel for the appellants has confined his submissions to the windows existing in the first and second storeys of the plaintiffs' house and the directions given by the learned District Judge with respect to other easements claimed by the plaintiffs have not been called into question by any of the parties before me. I shall therefore, confine myself to the plaintiffs' claim with respect to the windows existing in their house in the first and second storeys.
6. So far as the two windows existing in the eastern room of the first storey of the plaintiffs' house are concerned there is a concurrent finding of the courts below that these windows had been newly opened, and are not proved to be in existence for 20 years or more and consequently the plaintiffs are not entitled to claim any easement in respect of light and air coming through these windows. This finding is one of pure fact and I do not see any reason to disturb the same.
7. Then there are two windows in the eastern room of the second storey of the plaintiffs' house. The courts below have found that they have been in existence for more than 20 years, but the ground on which the plaintiffs' claim has been negatived in respect of these windows is that the plaintiffs have failed to allege and prove that there was likelihood of substantial diminution of light and air coming through these windows by the threatened or intended obstruction by the defendants and in this view of the matter the learned District Judge rejected the plaintiffs' claim in respect of these windows.
Learned counsel for the appellants has argued that in case of threatened or intended disturbance to an easement, it is not necessary for the plaintiff to prove likelihood of substantial damage by the proposed obstruction or material interference with the physical comfort of the plaintiffs. The contention of the learned counsel is that substantial damage is required to be proved only in case the easement has been actually disturbed. In support of his contention learned counsel has invited my attention to Section 35 of the Easements Act (Act No. V of 1882) which reads as under:--
'35. Injunctions 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.'
8. Section 35 provides for the remedy of injunction in case of actual disturbance of threatened or intended disturbance to an easement. Clause (a) deals with the situation when the easement is actually disturbed, and Clause (b) provides for an injunction when a disturbance has not actually occurred but is merely threatened or intended. Clause (a) provides for the case of an actual disturbance and lays down that an injunction would be a possible remedy in all those cases in which damages could be recovered under Section 33. An injunction under Clause (a) would thus indirectly call for consideration of all the criteria of substantial interference as mentioned in Section 33. but that, according to me, does not mean that in a suit for an injunction under Clause (b) injunction would be granted even if the threatened disturbance is a trivial one and if carried out would cause no substantial damage,
In my opinion, even a suit for an injunction under Clause (b) for threatened or intended disturbance to an easement or what is called a quintile action, would, on general principle, be granted only if the threatened disturbance is not a trivial disturbance but is such a disturbance that if carried out would cause substantial damage, or in the case of an easement of light and air a substantial diminution of the same. It was, therefore, necessary in the present case for the plaintiffs to have established that there would be substantial diminution of light and air coming through the windows in question, if the defendants were allowed to carry out the threatened or intended disturbance to the easement claimed by the plaintiffs. There is no allegation to that effect in the plaint nor is there an iota of evidence on that point from the side of the plaintiffs. In absence of an allegation and proof to that effect the learned District Judge was, in my opinion, right in refusing the relief of injunction in respect of the windows in the second storey of the plaintiffs' house also.
9. Thus I do not find any force in this appeal and hereby dismiss it but I leave the parties to bear their own costs.
10. Leave to appeal to Division Bench is prayed for but refused.