D.S. Dave, J.
1. Both these cross appeals arise out of the same case and therefore they are disposed of together.
2. The facts giving rise to them are that the houses of both the parties are situated in a locality called Talav-Para in Bar.an. The backs of both the houses are adjacent to each other. In between the backs of the two houses, there is a small lane which is 1' 6' wide at the northern end and 1' 6 1/2' wide at the southern end. The plaintiff's house faces east, while the defendant's house faces west.
3. The plaintiff's case was that in the second storey of his house there were 3 windows and 4 ventilators, and in the third storey there were 3 windows and one ventilator opening towards west, i.e. the defendant's house, that he was receiving light and air from the said windows and ventilators for more than 20 years and that the defendant on his side had started constructions which would almost close the said windows and ventilators and deprive him of the air and light which he was receiving upto that time.
It was further averred that he had some drains falling towards the lane which exclusively belonged to him and these drains were also likely to be closed by the defendant's constructions. It was also alleged that the defendant had made an encroachment upon the plaintiffs lane to a certain extent and therefore, it was prayed that (1) the defendant should be ordered to remove the encroachment on the lane, and (2) that an injunction should be issued to him and he should be restrained from making constructions so that the plaintiff's right to receive free air and light from the windows and ventilators may not be obstructed.
4. It may be pointed out here that at the time when the suit was filed on 9-4-51, the defendant in the case was Laddulal son of Laxmi Narain, but he died during the pendency of the first appeal and therefore, his wife Mst. Dakhun Bai and his mother Msf. Anandi Bai have been brought on record as> his legal representatives.
5. The defendant admitted in the trial Court that there was a small lane in between his house and that of the plaintiff and that the plaintiff had windows and ventilators opening towards his house. But it was denied by him that the plaintiff had acquired a prescriptive right to receive air and light from the said windows and ventilators. He also denied having made any encroachment on the lane. It was asserted that he was making constructions on his own property and that the plaintiff's suit was not maintainable and was fit to be dismissed.
6. The trial Court framed as many as 7 issues and after recording evidence of both the parties, it came to the conclusion that the defendant had noG made any encroachment on the lane. At the same time, it was found, that the windows and ventilators in the plaintiff's house were in existence for more than 20 years, that he had acquired a prescriptive right to receive light and air from the said openings and that the defendant had partially deprived the plaintiff of his prescriptive right by making certain constructions on the second storey of his house.
The defendant was therefore ordered that he should keep only a parapet wall on the roof of the building on the ground floor 1 ft. high and the remaining construction should be demolished. Aggrieved by this decree of Munsif, Baran the defendant filed an appeal which was heard by the Civil Judge, Baran. The plaintiff was also not satisfied with the decree and therefore he also filed an appeal. The appellate Court dismissed both the appeals after hearing the parties and maintained the trial Court's decree. Both the parties have, therefore, come to this Court, in appeal.
7. It would now be proper to dispose of the defendant's appeal first, since it was filed earlier in time.
8. Learned counsel for defendant-appellant has not challenged the concurrent finding of both the Courts below to the extent that the plaintiff's windows and ventilators opening towards file defendant's house were in existence for more than 20 years prior to the institution of the suit and that the plaintiff had therefore acquired prescriptive right to receive air and light from the said windows and ventilators. The only point which has been urged by learned counsel is that apart from parapet walls over the remaining roof, his client had constructed one room on the first floor, i.e. the second storey of his house, that this construction at least does not obstruct, any of the windows or ventilators of the plaintiff and therefore, it is prayed that the trial Court's decree should be set aside to the extent that the room which the defendant is using a,s a kitchen should not be demolished.
Learned counsel for the respondent has urged in reply that the room constructed by the defendant causes obstruction to one ventilator though not to windows or other ventilators. He has admitted that other windows and ventilators are not obstructed by this room. He contends that the decree of the Courts below about the demolition of this room should also be maintained, because his client has a right to receive all that quantity of light and air which he had been receiving during the last 20 years prior to the institution of the suit. It is urged by him that he has got this right under Section 28(c) of the Indian Easements Act.
9. Learned counsel for the appellants has urged on the other hand that the respondent would have got tbe right to get this room demo-fished only if he could prove substantial damage to his rights as required by Section 33 of the Indian Easements Act and since substantial damage has not been proved, he has got no right to get this room demolished. I have given due consideration to these arguments and in my opinion, the contention raised by learned counsel for the respondent is not tenable. The argument raised by learned counsel for the respondent is no doubt supported by Nandkishore Balgovan v. Bhagubhai Pranvalabhdas, ILR 8 Bom 95, which he has referred. This view was also affirmed by Kunnilal v. Kundan Bibi. ILR 29 AH 571. In these two cases, it was held that
'where a plaintiff is claiming relief upon the ground that his prescriptive right to the passage of light and air to a certain window has been interfered with, it is enough to show that the right has in fact been interfered with. The plaintiff is not obliged to go further and show that he has suffered actual damage thereby.'
The attention of the learned Judges in both the cases was drawn to the principles enunciated in Colls v. Home and Colonial Stores Ltd., 1904 AC :179 and Kine v. Jolly, 1905-1 Ch 480. But it was observed that in view of: the express: language of Section 28(c) of the Indian Easements Act, they could not be taken into consideration. It may be pointed ont that the view taken in Kunm'lal's case, ILR 29 All 571, was not followed in Suraj Narain v. Kalyandas, AIR 1929 All 430, in tbe same High Court.
In that case it was observed that Aikman J., who decided Kunnilal's case ILR 29 All 571,
'entirely ignored Section 35(a) Easements Act. Section 35 enacts when an injunction may be granted. Clause (a) refers to a mandatory injunction and Clause (b) to a perpetual injunction. The section is unfortunately worded. In Clause (a) a mandatory injunction is allowed when compensation for disturbance might be recovered under Section 33. The word 'when' must be construed to mean 'when and where', because it would be useless to prescribe that an injunction could be granted when damages can be claimed under Section 33, if damages under Section 33 could not be claimed. The effect of the clause is, therefore, only to allow an injunction where substantial damage is proved. This conclusion also follows from Section 54, Specific Relief Act, which only allows an injunction when pecuniary compensation would not afford adequate relief. It follows that an injunction is only an alternative within the discretion of the Court and is not an independent form of relief.'
Thus it was held in the above case that 'an injunction to restrain the disturbance of an easement of light and air can only be granted where sub-j stantial damage is proved to have been caused.' This view is supported by the observations of their Lordships of the Privy Council in Paul v. W. Rob-son AIR 1914 PC 45. In that case, 'their Lordship referred to 1904 AC 179 and 1905-1 Ch 480 and held that
'the owner of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is, what is required for the ordinary purposes of inhabitancy or business of the tenant according to the ordinary notions of mankind.'' Learned counsel for the respondent has urged that in the above case their Lordships did not refer to Section 28 of the Indian Easements Act and perhaps their attention may not have been drawn to it. It is true that there is no reference to Section 28 in their judgment, but for that reason alone it cannot be assumed that the provisions of that statutory law were nod pointed out to their Lordships or that the said section was not in their view. In Jamna Das v. Guhaj, AIR 1952 Raj 1, it was held by a learned Judge of this Court that
'in a suit for perpetual injunction restraining the defendant from obstructing light and air of a window of the plaintiff's house the question to be considered is whether the act of the defendant in obstructing the light and air of the plaintiff's ancient window can be considered to be a nuisance. It is for the plaintiff to show what specific injury is caused to him and when he has failed to prove this, he cannot succeed on the mere presumption that by closing down, of the disputed window, specific injury should be deemed to have been caused to the plaintiff .... Mere closing down of the. ancient window cannot by itself be deemed to have caused substantial injury to the plaintiff.' In the above case, the learned Judge has referred to the observation of their Lordships of the Privy Council in Paul's case, AIR 1914 PC 45. I respectfully agree with this view and have no reasons to differ from it. Under these circumstances, it was necessary for the plaintiffs to show that the construction of the room by the defendant on the first floor had caused substantial damage to the air and light which he was receiving in his room. Both the Courts below have not given their finding to the effect that the construction of this room had .substantially diminished the quantity of air and light passing to the plaintiff's room through the ventilator which is said to be obstructed.
I, therefore, think it proper to allow the defendant's appeal to the extent that the decree ol both the Courts below ordering the defendant to demolish the room which he> has constructed should be set aside1. Learned counsel for the appellants has not challenged the) remaining part of the decree and therefore, it is maintained. In other words, the defendant (the appellants) will not make any construction on the remaining part of his second storey and he will not raise parapet walls on the roof of the ground floor above 1' high.
10. Now coming to the appeal filed by plaintiff Sheth Dhanraj, the first point urged by his learned counsel is that the first appellate Court has come to a finding that the defendant had encroached upon the lane to the extent of 4' and therefore, it should have ordered the defendant to remove his, constructions to that extent. I have given due consideration to this argument and I find that the finding of the first appellate Court about the defendant's encroachment over 4' of lane is not firm.
The learned Civil ludge has referred to the statement of P.W.6 Sunderlal and then proceeded to point out that if his statement be taken to be correct, then it would appear that the defendant had encroached upon the lane to the extent of 4'. It appears, however, from the judgment of the learned Civil Judge that he has not placed implicit reliance upon the measurements, which were given by P.W. 6 Sunderlal. In the absence of production of pattas from both the sides, it is difficult to hold that the defendant had encroached over the lane to the extent of 4'. I do not, therefore, see much force in this argument and it is fit to be dismissed.
11. The next argument raised by appellant's learned counsel is that the height of the ground floor of the defendants house which existed before he started the new construction was lower than what it exists at present and that the Courts below should have ordered the defendant to reduce the height of his room on the first floor to that extent. It appears from the judgments of both the Courts below that although the defendant had raised the wall to a certain extent, it cannot be said in the first instance what was the exact measurement of the wall of the defendant's house, which existed at the site when he started the new construction.
It further appears from the judgments of both the Courts that the quantity of ait and light which the plaintiff has been receiving from his windows and ventilators on the first floor is not substantially damaged. The trial Court has already ordered that the defendant will not keep the parapet wall on the roof of his room above 1'. In my opinion, it is quite reasonable that there should be a parapet wall at-least 1' high on the roof. It cannot cause substantial damage to the quantity of air and light, which the plaintiff was receiving from his windows and ventilators and therefore there is no good reason for disturbing the decree of the Courts below.
12. The defendant's appeal is therefore partlyallowed and the decrees of the Courts below aremodified to the extent that the room which the defendant has already constructed on the first floor willnot be demolished. The remaining appeal is dismissed. The plaintiff's appeal is dismissed in toto. Inview of the partial success of the parties, in thisCourt, they are left to bear their own costs in thisCourt.