D.S. Dave, J.
1. Both these cross-appeals arise out of the same suit and therefore they are disposed of together.
2. The case between the parties is a small one but it has a long history extending over more than 10 years. The suit was originally instituted on 17-7-1948 by Suraj Karan, father of Mst. Umrao Kanwar and Sardar Kanwar, who are appellants in appeal No. 214/1953. The original defendants were Ganga Bux and his son Mohanlal. Gangabux died during the pendency of the suit in the trial Court and therefore the only contesting defendant left there was Mohanlal. He has also died since then and his widow Mst. Ram Pyari and his two daughters Mst. Gulab and Mst. Gopali are respondents in appeal No. 214/1953 and appellants in appeal No. 226/1953. There were three other pro forma defendants, viz. Manak Chand, Moti Ram and Pooran Chand. Manakchand is also dead and his name has been struck off by order of the Court dated 1-9-1955 in appeal No. 214/53. The other two defendants Motiram and Pooranchand are still respondents in both the appeals, but they are only pro forma parties; they have taken no interest in this case and have not cared to appear in this Court.
3. It is common ground between the parties that the houses of the original plaintiff Suraj Karan and the contesting defendant Gangabux's son Mohanlal are situated in a locality called Rasta Moti Singh Bhomia at Jaipur. That portion of the plaintiff's house which is in dispute faces west. On the first) floor of that house, there is a big room just above the door. In the northern wall of this room, there is a door which leads to a small ante-room. The dispute between the parties relates to windows and ventilators in this ante-room and on the roof of this room. In this small room, the plaintiff had two windows measuring 1 1/4' x 1 1/4' facing west. Just above those windows, there were two ventilators measuring 9' x 9' and above the two ventilators there are two small ventilators of round shape. On the roof of this room, there were two more windows facing west.
4. The plaintiff's case was that outside the house on the western side, there was a chowk which was common property of the plaintiff and the defendants. The house of the contesting defendants Gangabux and Mohanlal stands on the southern side of this chowk. It was alleged by the plaintiff that these two defendants had constructed a verandah measuring 34' 6' long east-west and 4 1/2' wide north-south in this common chowk. According to the plaintiff, the defendants had no right to construct a building on this common property.
It was further alleged that the defendants had constructed a wall adjoining the plaintiff's house with the result that one window and two ventilators in the plaintiffs ante-room and one window On its roof which have been marked as D, E, F & G in the site plan Ex. 7 presented with the plaint, were closed. It was further stated that just above the plaintiff's door and below the windows, there was a projection chhaja on the western side and the defendants' wall also rested on this projection. It was, therefore, prayed that) the defendants be directed to demolish the verandah marked B-C in Ex. 7.
In the alternative, it was prayed that if the Court does not consider it proper to get the verandah demolished, the defendants Gangabux and Mohanlal should be directed to demolish the construction over the plaintiff's Chhaja and that thev should be further directed to open the plaintiff's windows and Jalis marked D, E, F and G. The plaintiff further prayed for an injunction restraining the said two defendants from making any constructions in the chowk in future.
5. It has already been mentioned above that Gangabux defendant died soon during the pendency of the suit in the trial Court. Mohanlal defendant who was the main contestant in the suit, denied the plaintiff's assertion to the effect that the place on which he had erected the verandah and the building above, was common property. It was further stated that the plaintiff's predecessors-in-title Agarchand Lalchand had made an agreement on Asad Vadi 3, Samwat 1952 that the defendant would be entitled to construct building on his Chabutra and also to close the windows, Jalis and Chhajas of the plaintiff's house, It was asserted by him that he had constructed the building on his own Chabutra, that the plaintiff had no right over that Chabutra, that although some windows and ventilators of the plaintiff's ante-room were closed, that room was still habitable since there was no substantial diminution of light and air and so it was prayed that the suit should be dismissed.
6. From the pleadings of the parties, the trial Court framed the following issues :
(1) Whether the land on which the constructions in dispute are raised is a portion of the joint chowk.
(2) Whether the defendant has constructed a wall on the plaintiff's Chhaja, without any right and hence the wall is liable to be demolished.
(3) Whether, by the construction of the disputed wall, the plaintiff's right of easement is adversely affected by the closing of windows and Jails, and the plaintiff is entitled to the demolition of the wall.
(4) Even if issues Nos. 2 and 3 be decided in favour of the plaintiff, whether the plaintiff's prede-cessors-in-title have executed an agreement in Samwat 1952 in favour of defendant No. 1 entitling him to raise the disputed constructions.
(5) Is the plaintiff entitled to any injunction ?
7. Both the Courts bave arrived at a concurrent conclusion regarding the land B-C marked in Ex. 7. Both of them have held that the defendant had his own chabutra on this portion, that it is not common property between the defendants and the plaintiff or other defendants, that he had a right to construct building thereon. Issue No. 1 is thus decided against the plaintiff by both the Courts and this finding has not been challenged in this Court at the time of arguments. Similarly, learned counsel for defendants-appellants has not challenged the finding of the first appellate Court on issue No. 4, which has been decided against his client. The present appeals are confined only to issues Nos. 2, 3 and 5.
8. The trial Court's finding on issues Nos. 2 and 3 was that the plaintiff's windows and ventilators were in existence for more than 20 years and that he had acquired a prescriptive easement of light and air from them. It was also found that the plaintiff's Chhaja, i.e. projection was also in existence for more than 20 years. The defendant was, therefore, ordered to demolish the wall which he had raised adjoining the plaintiff's house and he was further directed not to close the windows and Jalis in future or to raise a wall, which might cover the Jharoka (projection). Aggrieved by the decision of the trial Court dated 8-12-1952, the defendant filed an appeal and the plaintiff also filed cross-objection, In the cross-objection, the only point raised by the plaintiff was that the trial Court had committed an error in holding the land B-C in the exclusive ownership and possession of defendant Mohanlal.
This objection was dismissed by the first appellate Court. The defendant sought to get the entire decree of the trial Court set aside in first appeal, but the first appellate Court allowed the appeal only partly as follows. It was ordered by the first appellate Court that the wall which was raised by the de-fendant adjoining the plaintiff's house need not be demolished, up to the window. The remaining decree was confirmed. Both the parties are dissatisfied with this order dated 6-8-1953 and, therefore, both of them have filed cross-appeals. It would be proper to take up the plaintiff's appeal No. 214/1953 first. APPEAL NO. 214/53:
9. It has been urged by appellants' learned counsel that his client's window is at least 1 1/4' above the Chhaja and that the first appellate Court has thus, committed an error in ordering that the wall constructed by the defendant need not be demolished up to the window. It is contended that according to the findings of both the Courts, the appellants' Chhaja (projection) was in existence for more than 20 years, that the plaintiff-appellants had, thus, acquired adverse possession of the land covered by the projection, that the defendant had no right left to construct his wall over the projection and, therefore, it should be ordered that the defendant should not raise his wall over the Chhaja.
According to learned counsel, the defendant can raise his wall only to the extent that it remains below the plaintiff's projection. Learned counsel for contesting respondents has not contested the findings of both the Courts below to the effect that the plaintiff's projection over the defendant's land was in existence for more than 20 years on the date of the suit. It is however, urged by him that the only right which the plaintiff had acquired was to keep that projection intact, but he had not acquired any right over the land, which was covered by that projection, nor had he acquired any right over the column of air above that projection.
According to him, his client was entitled to construct a wall below the plaintiff's projection and similarly he had a right to construct a wall above the projection. All that the plaintiff could claim was that the defendant should not raise the wall on the plaintiff's projection. He says that the defendant would so construct a wall above the plaintiff's projection that it will not rest upon it and the defendant will not take any support from this projection.
10. I have given due consideration to the argu-ments raised by learned counsel for both the parties. It may be pointed out that ft similar question arose in Ranchod Shamji v. Abdula Bhai Mithabhai, ILR 28 Bom 428. In that case, the plaintiff's beams overhung the defendant's soil. The defendant erected a building which overhung those beams. The question, therefore, arose whether the beams gave the plaintiff a right to the column of air above them. It was observed by Jenkins, C. J. that,
'the defendant being the owner of the soil was entitled prima facie to all above it and the diminution in his rights by reason of the beams does not extend beyond the protrusion of the beams them-selves.'
The learned Judges in the above case followed the view taken in Corbett v. Hill, (1870) 9 Eq 671 and Harris v. De Pinna, (1886) 33 Ch D 238. These cases lay down that if any part of the house of one owner projects over the land of a neighbour, the right acquired by the person having the projections, is only about the column of air occupied by the said projection and the column of air above and below the projection still belongs to the person, who is the owner of the soil.
The same view was taken by learned Judges of a Division Bench in Kashibhai Kalidas Patel v. Val-labhai Wagibhai Patel, AIR 1922 Bom 83. In that case, it was held by the lower Court that the plaintiff had lost his title to the land up to the line of the defendant's projections which had existed over 20 years. Referring to this decision, it was observed by Macleod C. J. that, 'it would be a very startling decision and it was obviously wrong.' He proceeded to observe that,
'All that the defendant could acquire by prescription would be an easement imposing the burden on the servient tenement of having that projection over it. Even if he acquired the right to project his roof over the plaintiff's land and to discharge rainwater over the plaintiff's land, he could not acquire title to the plaintiff's land.'
This view was again followed in Bahadurmal Gur-mukhrai Nemani v. Mohanlal Surchand, AIR 1925 Bom 335. I respectfully agree with the view taken in ILR 28 Born 428. It is, therefore, clear that the plaintiff has acquired his right only to that much column of the air which is occupied by his projec-tion, i.e. Chhaja over the defendant's land. The column of air below this projection and also above the projection still belongs to the defendant and if the defendant constructs his wall below this projection, the plaintiff can have no right to object to it.
Similarly, if the defendant makes some construction above the projection in a manner that he takes no support from the plaintiff's projection or does not raise any wall thereon, he is certainly entitled to make those constructions. The plaintiff's appeal is, therefore, allowed only to the extent that the defendant is directed not to raise his wall over the plaintiff's projection or to take any support from it. The remaining appeal is fit to be dismissed.
APPEAL NO. 226/1953:
11. Now coming to appeal No. 226/1953, learned counsel for defendant-appellants has urged that the first appellate Court has committed an error in directing his clients to construct their wall only up to the window of the plaintiff. It is urged by him that his clients have a right to construct the wall to any height. According to him. the only right which the plaintiff can claim is that the defendant should not close the plaintiff's windows and ventilators of his room. As regards' the window on the roof, it is urged that the plaintiff can get sufficient light and air from the sky, because the roof is quite open and, therefore, the order of the Courts below directing the defendant not to close the plaintiff's window on the roof is wrong.
Learned counsel fox respondents has very candidly conceded that his client's roof is open and, therefore, he cannot support the plaintiff's claim to the effect that the window in the western wall of the roof should not be closed. He has, however, con-tended that the defendant should not be allowed to construct the wall above the projection of the plaintiff. While deciding Appeal No. 214/1953, I have already held that the plaintiff has no right to prevent the defendants from raising their wall above the plaintiff's projection, so long as they do not rest their wall on the plaintiff's projection or take any kind of support therefrom.
The column of air above the plaintiff's projection certainly belongs to the defendants, and so they have a right to make any construction above the plaintiff's projection so long as they do not rest their wall on it. Learned counsel for defendants-appellants has urged that his clients would raise the wall in the column of air above the plaintiff's projection in such a way that no support is taken from the plaintiff's projection nor the wall is rested upon it. If he can raise the wall in such a manner, then the only right which the plaintiff can claim is that the defendants should keep in their wall openings of the same size as the plaintiff's windows and ventilators, so that the light and air which the plaintiff gets from the win-down and ventilators of his room is not obstructed by the wall. To this extent, the defendant's appeal is fit to be allowed.
12. Learned counsel for the defendants has next urged that the defendants' wall had closed only one set of windows and ventilators of the plaintiff's anteroom, that the second set of windows and ventilators are still open, that the plaintiff receives sufficient air and light to the ante-room from this set of windows and ventilators and hence the decree of the first appellate Court directing the defendants to keep their wall below the window of the plaintiff should be set aside.
Learned counsel for plaintiff-respondents has urged, on the other hand, that the shutters of the second window cannot be opened on account of the construction of the defendants' wall, that the room has become quite dark and unhabitable and hence, the defendants were rightly directed by both the Courts below to open both windows and ventilators of the ante-room. Learned counsel for appellants has referred to Section 33 of the Indian Easements Act and urged that the plaintiff has not been able to prove if the closure of the windows and ventilators has caused substantial damage to him.
Learned counsel for the respondents has, on the other hand, referred to Section 28 of the same Act and urged that the extent of prescriptive right to the passage of light and air to the windows and ventilators is that quantity of light and air which the plaintiff was accustomed to get from those openings during the whole of the prescriptive period irrespective or the purpose for which the room was used and hence the Courts below were quite correct in ordering the defendants to keep all the windows and ventilators open as before.
13. I have given due consideration to these arguments and I agree with learned counsel for de-pendants-appellants that the plaintiff can get an in-junction only if he is able to prove substantial damage as required by Section 33 of the Indian Ease-ments Act. This view is supported by the observation of their Lordships of the Privy Council in P. C. E. Paul v. W. Robson. AIR 1914 PC 45. In that case, it was observed 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 ordi-nary notions of mankind.'
This point has been recently decided by this Court in Mst. Dakhan Bai v. Seth Dhanraj, S. A. No. 65 B of 1953, D/- 29-10-1958: (AIR 1959 Raj 144) and the reasons given therein need not be repeated again. 'It would suffice to say that if the plaintiff has not been able to prove that substantial loss was caused jto him by the closure of the windows and ventilators, he should not get the relief. But, I find from the record of the Courts below that he has been able to prove this fact. Both the Courts below have arrived at a concurrent finding to the effect that the plaintiff's room has become quite dark on account of the wall being raised by the defendants.
Learned counsel for appellants has urged that the plaintiff's room is a small room, that there is a door in that room on the northern side and he can get sufficient light and air. from that door. It is true that there is a door, in this room, which opens in the bigger room, but both the Courts below have held in spite of the presence: of this door that the small room has become dark and it does not get sufficient light and air to make it habitable. The trial Court has inspected the site itself, as is apparent from its note dated 4-12-1952.
The question whether sufficient light and air could reach the room from the door is more of fact than of law and when there is a concurrent finding of; both the Courts below on that point against the defendants, this Court cannot disturb it in second appeal. It was for the defendants to impress upon the trial Court when it inspected the site, whether sufficient light and air could reach the room from its door. As pointed out above, the door opens not in a verandah or on an open terrace or an open land, but inside another room and, therefore, it is very likely that sufficient light and air may not reach to the small room from that door,
14. Learned counsel has next urged that if one set of windows and ventilators above it are left open, it will provide sufficient air and light to this room and, therefore, the direction to his clients to open both the windows and the ventilators above them should be modified. It may again be pointed out that the defendants ought to have impressed upon the trial court when it inspected the site that sufficient air and light could be available from the one window and the ventilators above it. The first appellate court is also said to have inspected the site although learned counsel has not been able to refer to any inspection note which might have been kept by it.
Both the parties have examined oral evidence and on their basis, both the courts below have arrived at a concurrent conclusion that both the windows and the ventilators above the windows should be kept open in order to allow sufficient air and light to the small room and make it habitable. I see no reason to disturb their findings of fact in second appeal. The direction of the Courts below to keep these windows open cannot, therefore, be disturbed. As regards the windows on the roof, the order of the Courts below cannot be maintained, because the plaintiff can get any amount of light and air from the sky and he cannot rightly complain of any damage much less of substantial damage by the closure of those windows on account of the defendants' wall.
15. The last contention raised by learned counsel for defendant-appellants is that the plaintiff had approached the trial Court with a definite claim) that the land covered by the defendants' Chabutra was common property and so he cannot rightly claim easement over that property. It has been pointed out that according to the definition of 'Easement' as given in Section 4 of the Indian Easements Act, it is a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in, or upon, or in respect of, certain other land which is not his own.
When the plaintiff claimed the land marked B-C as his own, he could not claim an easement upon his own land or upon a land which was common to him and the defendants. It is contended that the plaintiff's assertion about his right of easement was, thus, destroyed by his own averment, in the plaint and the subsequent evidence led by him and hence the order of the courts below should be set aside. agree with learned counsel to the extent that a person cannot claim an easement on his own land. It Is essential that in order to create a right of easement, the dominant and servient tenements should belong to different owners.
But at the same time, the plaintiff's suit cannot be dismissed simply because he claimed ownership of the land B-C on which he also claimed easement. In Narendra Nath Barari v. Abhoy Charan Chatto-padhya, ILR 34 Cal 51, it was held by a Full Bench that a suit is not liable to. be dismissed simply because the plaintiff claims in the alternative over the same plot of ground rights, (1) of ownership, and (2) of easement. It was held that such a claim could be made in the alternative. I respectfully agree with this view. It has been urged by appellant's learned counsel that the plaintiff had not put in his claim in the alternative and that, on the other hand, he continued to claim ownership of the land B-C and so his claim of easement should be thrown out even up to the first appeal.
I have looked into the plaint and find that although it wag not happily drafted, it does show that the plaintiff had made an alternative claim of joint ownership over the land B-C or of easement thereon. It appears from the statement of plaintiff Suraj Karan that he and his father had purchased the property more than 40 years back. He further says that the windows and ventilators were in existence even before the property was purchased by them. It also appears that the land on which the defendants have now raised verandah and rooms was lying as an open piece of land.
The plaintiff could, therefore, have a bona fide belief that the entire Chowk outside his house and the house of the defendants was their joint property. At the same time, he was receiving light and air through the windows and ventilators for more than 20 years. Under the circumstances, it was not very surprising if he made a claim of joint ownership over the land B-C and an alternative claim of easement, regarding his windows arid ventilators and projection. So far as this Court is concerned, the plaintiff has not even raised an objection of joint ownership of the land B-C in his appeal and hence I do not think it proper to set aside the decree on this technical ground.
16. Learned counsel for the plaintiff has urged that if the plaintiff thought up to the date of the suit that he was owner of land B-C, he could not have conscious knowledge that he was also exercising a right of easement. This argument is not tenable in my opinion. A similar argument was raised in Rau Rama v. Tukaram Nana, AIR 1939 Bom 149 and it was observed by Beaumont C. J. that
'It is not the law that a person cannot acquire an easement unless during the whole prescriptive period he acts with the conscious knowledge that it is a case of a dominant and servient tenement and that he is exercising a right over property which does not belong to him. It is of course perfectly true that an easement can only be claimed in respect of somebody else's property, and a man cannot claim an easement over his own property. But it is also clear that a plaintiff may claim an easement and owner-ship in the alternative, as was held by the Calcutta Full Bench in ILR 34 Cal 51.
In my opinion, where a party shows that for the statutory period, he has openly exercised certain rights which are in themselves sufficient to estab- lish an easement, prima facie, he is entitled to the easement and it is not necessary to show that du-ring the whole of the prescriptive period, he was consciously asserting a right to an easement. Most laymen do not know exactly what their legal rights may be. They do certain acts without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or pant of the period of prescription the plaintiff was not consciously claiming an easement.'
I respectfully agree with the above observation. It may be added that in the case of an easement relating to the passage of light and air, it would be too much to expect that a dominant owner should be consci-ous every minute of the prescriptive period that he is exercising an. easement over the servient tenement. One may have such conscious knowledge, while exercising an easement, like right of way over another man's land, but in the case of light and air which comes automatically, one may not be even con- scious of the easement he enjoys so long as it is not disturbed. I, therefore, see no force in this argu-ment. Both the appeals are, therefore, partly allowed.
17. Appeal No. 214/1953 is allowed only to the extent that the respondents would not raise their wall on the appellants' Chhaja, nor would they take any kind of support therefrom. The remaining appeal is dismissed.
18. Appeal No. 226/1953 is allowed to the extent that the lower Courts' Order restraining the defendant-appellants from raising the wall above the Chhaja is set aside. They would, however, raise the wall in such a manner that they will not rest it on the plaintiff respondents' Chhaja or take any support therefrom. In other words, the plaintiff respondents' Chhaja would he left quite free and if that can be done, the plaintiff respondents may raise their wall in the column of air both below and over the Chhaja. At the same time the defendant-appellants would not, close the plaintiff respondents' windows and ventilators in their room.
The windows and ventilators which have been closed would be opened by removing that portion of the wall by which they are closed. The defendant-appellants would be further restrained from closing the said windows and ventilators ever in future. They can close only that window which is in the wall onthe roof of the plaintiff respondents' room. In viewof the partial success of both the parties, they areleft to bear their own costs in this Court in boththe appeals.