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Anopchand Vs. Misrilal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 47 of 1958
Judge
Reported inAIR1963Raj184
ActsEasements Act, 1882 - Sections 7
AppellantAnopchand
RespondentMisrilal and ors.
Appellant Advocate H.C. Jain, Adv.
Respondent Advocate Kishore Singh, Adv.
DispositionAppeal allowed
Cases Referred and Campbell v. Paddington Corporation
Excerpt:
.....the law relating to easements in british india'.it is often said that apart from easement the owner of land has not any right to receive lateral light, but this statement of law is true only when the claim is to be adjudged in competition with the neighbouring owners of the land. and the only remedy in the power of the adjoining owner is to build on his own ground, and so to shut out the offensive windows. this statement of law is based on the principle that the owner of a plot of land may continue to enjoy as much lateral light as he likes subject to the right of the owner of adjoining land to shut out the light by making any erection on his own land. the superiority of the right of an owner of a plot of land to enjoy it by raising any building over it is recognised in competition..........down the wall was repaired. they also pleaded that the plaintiff had not acquired any prescriptive right of easement and that the defendants had the right to close the windows by constructing the wall in dispute. both the lower courts have dismissed the suit holding that the plaintiff had not acquired any right of easement for the passage of light and air through the windows. the trial court did not give any finding whether any substantial injury had been caused to the plaintiff and the lower appellate court observed that -'it is also necessary for the plaintiff to prove substantial loss or damage,, to achieve success in his suit'.and dismissed the suit on the ground that such a loss was not proved. hence this second appeal on behalf of the plaintiff.2. it is a matter of regret that the.....
Judgment:

D.M. Bhandari, J.

1. This is a Civil Second Appeal and raises an interesting point of law. The plaintiff appellant is the owner of a shop in village Atbara (Tehsil Sojat). The plaintiff opened two windows in his shop towards the south. The defendants erected a wall adjacent to the southern wall of, the plaintiff's shop and closed the two windows. The plaintiff, therefore, filed a suit for demolition of the wall erected by the defendants and for a permanent injunction restraining the defendants from closing the windows. The allegation of the plaintiff is that the land on which the defendants had erected the wall was the property of the State being a public lane and the defendants had no right to erect the wall and close the windows of the plaintiff's shop, thus obstructing the passage of light to his shop. The defendants pleaded that there was an old wall of the 'pol' at the spot which belonged to the defendants who were residents of Barfon-ki-Bas and on its falling down the wall was repaired. They also pleaded that the plaintiff had not acquired any prescriptive right of easement and that the defendants had the right to close the windows by constructing the wall in dispute. Both the lower Courts have dismissed the suit holding that the plaintiff had not acquired any right of easement for the passage of light and air through the windows. The trial Court did not give any finding whether any substantial injury had been caused to the plaintiff and the lower appellate Court observed that -

'It is also necessary for the plaintiff to prove substantial loss or damage,, to achieve success in his suit'.

and dismissed the suit on the ground that such a loss was not proved. Hence this Second Appeal on behalf of the plaintiff.

2. It is a matter of regret that the findings of fact given by the lower appellate Court are not very precise. However, the facts established by the evidence on record may be taken to be, as follows: -

(a) That the plaintiff had acquired no right of easement by prescription in respect of the two windows;

(b) That the defendants had no right of ownership or occupation of the land where they had erected the wall it being the State land serving as a lane for going to the locality known as 'barfon-ka-bas';

(c) That there was some diminution in the light and the air available to the shop of the plaintiff, on account of the closure of the two windows by the defendants.

3. The contention on behalf of the plaintiff-appellant is that the defendants who were neither the owners nor the occupiers of the land on the, southern side of the shop had no right to erect the wall and close the windows of the plaintiff's shop and the plaintiff can maintain a suit to remove the constructions so raised by the defendants-irrespective of the fact whether he had acquired any right of easement or not.

4. The point for determination in this Second Appeal is whether under the circumstances of the case, the plaintiff can maintain the suit for demolishing the obstruction raised by the defendants, the plaintiff having acquired no right of easement by prescription and the defendants being neither the owners nor the occupiers of the land over which they had erected the wall.

5. The plaintiff is the owner of the shop and he has the exclusive right which is available to every owner of immovable property to enjoy it. He has further the right to enjoy without disturbance all the natural advantages arising from its situation. (See Section 7 of the Indian Easements Act). Illustration (d) to Section 7 speaks of one such right available to the owner of the property and it says that -

'An owner of the land has the right to so much light and air as pass vertically thereto.'

6. Let us now examine what is the right of an owner of a land in respect of lateral light. There is no doubt that an owner may have certain advantage in enjoying lateral Hght arising out of the situation of his land. Bramwell, L. J., in Bryant v. Lefever, (1879) 4 CPD 172 has observed, as follows: -

'What, then, is the right of land and its owner or occupier? It is to have all natural incidents and advantages, as nature would produce them; there is a right to all the High and heat that would come, to all the rain that would fall, to all the wind that would blow; a right that the rain which would pass over the land should' not be stopped and made to fall on it; a right that the heat from the sun should not be stopped and reflected, but should be able to escape freely; as if it were possible that these rights were interfered with by one having no right, no doubt an action would lie. But these natural rights are subject to the rights of adjoining owners, who, for the benefit of the community, have and must have rights in relation to the use and enjoyment of their property that qualify and interfere with those of their neighbours' rights to use their property in various ways in which property is lawfully and commonly used.'

This passage from the judgment of Bramwell, L. T., has been noticed by Sir Barnes Peacock in his well known treatise, 'The law relating to Easements in British India'. It is often said that apart from easement the owner of land has not any right to receive lateral light, but this statement of law is true only when the claim is to be adjudged in competition with the neighbouring owners of the land. Even as against his neighbours he has the right to open as many windows as he likes in the building on his land and to receive any amount of lateral light as observed by Lord Chancellor, in Tapling v. Jones, (1865) 11 HLC 290 at p. 307:

'By opening the new windows he does no injury or wrong in the eye of law to his neighbour, who is at liberty to build up against them, so far as he possesses the right of so building on his land; but it must be remembered that he possesses no right of building so as to obstruct the ancient window; for to that extent his right of building was gone by the indefeasible right which the statute has conferred.'

The same statement of law is to be found in the speech of Lord Cranworth -

'Every man may open any number of windows looking over his neighbour's land; and, on the other hand, the neighbour may, by building on his own land within 20 years after the opening of the window, obstruct the light which would otherwise reach it.'

Lord Chelmsford made the following observations : -

'It is not correct to say that the plaintiff, by putting new windows into his house or altering the dimensions of the old ones, 'exceeded the limits of his right', because the owner of a house has a right at all times (apart, of course, from any agreement to the contrary) to open as many windows in his own house as he pleases.

* * *

'It leaves everyone to his self-defence against an annoyance of this description; and the only remedy in the power of the adjoining owner is to build on his own ground, and so to shut out the offensive windows.'

The case of (1865) II HLC 290 has laid down the law in England and the same is the law in India, except that in India the right of privacy is also recognised. This statement of law is based on the principle that the owner of a plot of land may continue to enjoy as much lateral light as he likes subject to the right of the owner of adjoining land to shut out the light by making any erection on his own land. The superiority of the right of an owner of a plot of land to enjoy it by raising any building over it is recognised in competition with the right of the neighbouring owner to enjoy lateral light and this is so for the reason that if a man is not permitted to build on his own land, his right to enjoy it would be unduly curtailed when the only consideration is that his neighbour cannot enjoy the same amount of lateral light as he used to do when the building was not constructed. Even the right to enjoy the land by erecting any building over it may be curtailed when the other party has acquired the right of easement by prescription and diminution in the light results in substantial loss to him.

7. But all this does not mean that the natural advantage arising from the situation can be 3 disturbed by any person who has not a right in himself to cause such disturbance. It would be very curious state of affairs if a right is given to a passer-by to close a 'window in a building without showing that he has suffered any injury ,by the window remaining open. As against a stranger who has no right on the neighbouring land, the owner of a plot of land may insist that there should not be any disturbance in the enjoyment of lateral light. This is the view taken in a number of cases. In Acchanna v. Venkamma, 5 Mad LJ 24, a Division Bench of the Madras High Court held that -

'It was not necessary for plaintiff to establish prescriptive rights of easement against a wrong-doer and that the mere fact of plaintiff a enjoyment is sufficient to entitle him to an injunction.'

In this case their Lordships referred to Jeffries v. Williams, (1850) 155 ER 347. The following observations in Jeffries case give the underlying principle-

'If a house is de facto supported by the soil of a neighbour, this appears to us to be sufficient title against any one but that neighbour or one claiming under him. Just as one who should prop his house up by a shore resting on his neibour's ground, would have a right of action against a stranger, who, by removing it, causes the house to fall; but none against his neighbour, or one authorised by the neighbour to do so, if he took it away and caused the same damage.' (pp. 350-351).

This principle in Jeffries case was also applied to Kondappa Rajara Naidu v. D. Suryanarayana, ILR 34 Mad 173. But this was a case in which the question of the right of the plaintiff for the enjoyment of a watercourse was concerned. It was taken that the plaintiffs had not acquired any right of easement by prescription to have the watercourse nor the defendants had the right over the land over which it flowed. It was held that under such circumstances the defendants could not obstruct the plaintiff's user. This case has been discussed by a Full Bench of the same High Court in C. Venkatanarasimharaju v. S. Ramaswami, AIR 1941 Mad 176 and it was held that -

'A person who has been using a particular way over land adjoining his, but for less than the prescriptive period cannot in ordinary circumstances maintain an action to prevent a stranger from obstructing him using the way. Such an, action can only be maintained where the obstruction to use has the effect of substantially depriving the person using the way of the enjoyment of his property.'

It was observed by Leach, C. J., that Jeffries case, (1850) 155 ER 347 cannot ever be read as laying down the proposition that where is in the person in possession the right of action against a stranger who interferes with the acquisition of easement which is not essential for the enjoyment of the property possessed. This distinction cannot however be drawn in a case where the question is whether a person who is enjoying natural advantage arising out of the land can or cannot be disturbed in so enjoying it by a stranger. The person enjoying a natural advantage arising out of the situation of his land must be taken to be in possession of a right, though such right is defeasible by the superior right which the neighbour may possess. The natural advantage of receiving lateral right may be liable to be disturbed by the owner or the occupier of the land in the neighbourhood if he makes any construction over his land but not by a stranger. This is also the view taken in Moidin Kunhi v. K. Gopalakrishna, AIR 1953 Mad 849 and Lakshminarayana Chetty v. Hirachand, AIR 1960 Mys 317.

8. For the reasons mentioned hereinbefore I am in respectful agreement with the view taken in these cases.

9. It has been argued by the learned counsel for the defendant-respondents that it was the duty of the plaintiff to prove that the diminution of light had become a nuisance. It is urged that action can only be maintained by the plaintiff when he proves that interference complained of amounted to nuisance. The question to be examined, however, is not of nuisance but whether the defendants are wrong doers. An action is maintainable if the plaintiff is able to show that he has suffered an injury. I may in this connection refer to 'Gale on Easements', by Michael Bowles, 13th Edition, Page 361 -

' 'Where, however, something is done on property A, to the detriment of property B, by X, a stranger to A, the owner or occupier of B can sue X without alleging or proving any easement, even though, vis-a-vis the owners and occupiers of A, B has no natural right of immunity against the consequences of the thing done by X.'

The learned author has referred to (1850) 155 ER 347 Bibby v. Carter, (1859) 4 H and N 153, Richards v. Jenkins, (1868) 18 LT 437 and Campbell v. Paddington Corporation, 1911-1 KB 869, in support of this proposition. The case of 1911-1 KB 869 is instructive on this point. That is a case in which the plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that a public procession was to pass. The defendants, a metropolitan borough, in pursuance of a resolution of their council to that effect, caused a stand to be erected across a certain highway to enable the members of the council and their friends to view the procession. The stand so erected obstructed the view of the main thoroughfare from the windows on the first floor of the plaintiff's house. The plaintiff thus suffered damage. The plaintiff then brought a suit for damages for wrongful interference with the use and enjoyment of her house, and the suit was decreed.

10. In this view of the law, the plaintiff's suit ought to be decreed.

11. The appeal is, therefore, allowed and the judgment and decree of the Civil Judge, Sojatdated the 27th of September 1957 are set asideand the plaintiff's suit is decreed with costs in allthe three Courts.


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