C.M. Lodha, J.
1. This is a plaintiff's second appeal from the judgment and decree by the Senior Civil Judge, Sikar dated 31.8.1962 by which his suit for mandatory injunction for demolition of the wall raised in front of the two aperture in the north-eastern room in the ground floor of his house situated in the town of Sikar, was dismissed.
2. The two apertures in dispute measure 9' X 12' each. It was alleged in the plaint that these aperture have been in existence for more than 20 years, and the plaintiff has been receiving light and air through them According to the plaintiff these apertures were the only source of light and air in the room, and the defendant by raising a wall contiguous to the plaintiff's house and close to the apertures in question has rendered the room in question unfit for reasonably comfortable living It was alleged that the Municipal Board, Sikar while allowing permission for construclion to the defendant had specifically directed the defendant to leave space to the extent of 3' by its order dated 2.9.1953, but the defendant in contravention of the order of the Municipal Board, raised the wall adjacent to the wall of the plaintiff's house as a result of which the two apertures shown as 'K' and 'L' in the site-plan Ex. P 2 have been completely blocked. It was also alleged that there were a few more apertures and water spouts in he wall which had been existing for more than 20 years, and it was apprehended that the same may be closed down. The plaintiff, therefore prayed that a mandatory injunction be issued for demolition of the wall and a perpatual injunction be also issued against the defendant restraining him from obstructing the air and light coming through these apertures in future The defendant denied the right of easement for light and air through the apertures in question: After recording the evidence produced by the parties the trial court by its judgment and decree dated 5-5-1954 decreed the plaintiff's suit. Dis-satisfied with the judgment of the trial Court, the defendant filed appeal which as dismissed by the learned Senior Civil Judge, Sikar on 15.7.1955. The defendant came in second appeal to this Court, and Bhargava J., found that the lower appellate court had not decided the quest on of substantial diminution of light and air and therefore by his judgment dated 20.7.1961 he accepted the appeal, and sent the case back to the first appellate court to decide it afresh. In the order of remand it was observed by the learned Judge that on a perusal of the site-plan Ex. P.2 it had come to his notice that a mark similar to 'K' and 'L' has been shown in the northern wall of the room. Consequently he directed the lower court also to inspect the site and give opportunity to the parties to point out if there was any other aperture or window in that room in as much as the existence of such an aperture would vitally affect the determination of the question regarding diminution of light and air.
3. After remand the plaintiff filed two affidavits dt. 11-1-61 and 3-1 62. It was stated in these affidavits that the third aperture shown by mark 'C' in the plan Ex.2 had been opened in September 1953 with the permission of his neighbour Radha Kishen whose house was just below that aparture, and that no prescriptive easement had been acquired in connection with this aperture which could be closed by Radha Kishan at any time. No counter affidavit was filed on behalf of the respondent. The learned Senior Civil Judge also inspected the site as directed by this court and thereafter by his judgment dated 31.8.1962, he accepted the appeal, set aside the judgment and decree by the learned Munsiff, Sikar and dismissed the plaintiff's suit for mandatory injunction as well as for perpetual injunction. Consequently the plaintiff had come in second appeal to this Court.
4. It has been argued by the learned counsel for the appellant that the finding of the learned Senior Civil Judge that inspite of the closure of the two apertures 'K' and 'L' in question the plaintiff got sufficient air and light through the aperture marked 'C; in the northern wall of the room and the door is erroneous in law He has argued that the aperture 'C had been opened with the permission of Radha Kishan, only on September 1953, and the plaintiff had not acquired any prescriptive right to receive light and air through this aperture. It is contended that this aperture had been opened only as a temporary arrangement as the apertures 'K' and 'L' had been closed by the defendant. The light and air received through this aperture, according to the learned counsel should not have been taken into consideration by the learned Senior Civil Judge He has also submitted that the learned Senior Civil Judge was in error in taking into consideration the existence of the door in the room for the purpose of deciding the question of diminution in light and air. In support of his contention the learned counsel has relied upon Rajani Kanta v. Nirmal Chandra AIR 1945 Cal. 438, Ebrahimji Gulamali v. Badrudm AIR 1951 Saurashtra 46 and Mst. Jadooie Kaharin v. Kisum Basi Kuer AIR 1925 Pat. 106.
5. On the other hand the learned counsel for the respondent has contended that the finding of the first appellate court that the apertures 'K' and 'L' have been in existence for more than 20 years, cannot be sustained. According to him these apertures had been closed more than 15 years before the institution of the suit when the defendant had constructed a 'Dhaliya' in his house. It is urged that the order of the Municipal Board dated 2.9.1953 marked Ex. P.1 itself shows that the 'Dhaliya' was already in existence and there were only two apertures in the plaintiff's wall over-looking the defendant's land, which are different from the apertures 'K' and 'L'. In the alternative he submitted that the finding of the learned Senior Civil Judge that there was no reasonable diminution of light and air in the plaintiff's room by closure of the apertures 'K' and 'L' was one of fact and could not be interfered with.
6. I may first deal with the respondent's objection whether the plaintiff has succeeded in establishing that the apertures 'K' and 'L' have been in existence for more than 20 years? The learned Senior Civil Judge has relied upon the statements of the plaintiff P.W.1 Mohanlal, P.W.2 Manakchand, P. W.3 Chaturbhuj and P.W 4 Moolchand for coming to the conclusion that these apertures have been in existence for more than 20 years. P W.1 Mohanlal has stated that he purchased the house in question 25 years ago, and it is in the same condition meaning thereby that he did not make any change therein. P. W. 4 Moolchand has stated that the apertures and water spouts in the eastern wall of the plaintiffs house in which the apertures 'K' and 'L' exist have been in existence for 25 to 30 years. The evidence of these two witnesses is corroborated by P.W. 2 Manakchand and P.W. 3 Chaturbhuj also who have stated that the house in duestion was purchased by the plaintiff's father 20 to 25 years ago. On the other hand, D.W.I Gordhanlal, the defendant, has only stated that the 'Dhaliya' in his house has been in existence for 14 to 15 years, but he has where stated that the apertures'K'and'L'were closed 15 or l6 years ago. A lot of argument was advanced by the learned counsel for the respondent on the basis of the order of the Municipal Board dated 2-9-1953 (Ex.P. 1) in which it is stated that a portion of the 'Dhaliya' is already constructed. This order does not at all show whether the apertures 'K' and 'L' were already closed by the construction of the 'Dhaliya' and if so when? Moreover it is significant that no argument had been advanced on behalf of the respondent at any stage that the order of the Municipal Board dated 2.9.1953 pertained to the construction of a wall which was likely to close two apertures other than 'K' and 'L' which had been closed long back by the construction of the 'Dhaliya'. The lower appellate court has taken into consideration all the relevant evidence of the plaintiff and the defendant on this point and has come to the conclusion that the apertures 'K' and 'L' have been in existence for more than 20 years. This is a finding of fact based on pure appreciation of evidence and I do not see any reason to interfere with it.
7. The more important question is whether the learned Senior Civil Judge has committed any error of law in coming to the conclusion that there has been no reasonable diminution of light and air coming into the plaintiff's room on account of the closure of the apertures 'K' and 'L'? I may state here that there is absolutely no evidence from the side of the defendant that the plaintiff had acquired any right to receive light and air through the aperture 'C in the northern wall of the plaintiff's house, and, therefore, it must be held that the plaintiff has not acquired any right of easement in respect of it.
8. In Jadooie Kaharin v. Mst Kisum Basi Kuer AIR 1928 Pat. 106 it was held that the mere existence of light from other sources to which the person has not acquired any prescriptive right is no answer to a suit for infringement of prescriptive right to light and air.
9. Lord Lindely in Colls v. Home and Colonial Stores Ltd. 1904 AC 179 has observed as follows:
A regards light from other quarters, such light cannot be disregarded; for, as pointed out by James V.C. in Dyer's Co. v. King 1870 G.E.Q. 483, the light from other quarters and the light the obstruction of which is complained of, may be so much in excess of what is protected by law as to render the interference complained of non actionable. I apprehend, however, that light to which a right has not been acquired by grant or prescription and of which the plaintiff may be deprived at any time, ought not to be taken into account.
10. Again in Jolly v. Kine 1907 AC 1 Lord Atkinson stated law on the point as follows:
Of course, in determining whether or not the quantity of light which the owner of the dominant tenement will, obstruction complained of, continue to enjoy is sufficient within the meaning of this decision, regard can only be had to the light which that owner is by grant or prescription legally entitled to enjoy. Any light which may with impunity be be any time obstructed, windows which may at any time be almost entirely blocked up or altogether darkened, must necessarily be left out of consideration.
11. In Ebrahimji v. Badrudin AIR 1951 Saurashtra 46, it was observed that in considering other sources of light, the court should take into consideration any aperture over which the owner of the dominant tenant would have no right to receive light therefrom.
12. No authority taking a contrary view has been brought to my notice by the learned counsel for the respondent. All that he has contended is that the bare statement of the plaintiff contained in his affidavit that he had not acquired any prescriptive right of easement to receive light and air through the aperture 'C should not be accepted. As already stated above there is nothing on the record to show that the plaintiff had acquired a prescriptive right of easement to receive light and air through the aperture 'C'. The affidavits filed by the plaintiff in the lower court are clear on the point that this aperture 'C' was opened only in September 1953. The defendant neither cared to file a counter affidavit nor asked for opportunity to lead evidence to show that the plaintiff had acquired a prescriptive easement in respect of the plaiaperture 'C'. In these circumstances there is no alternative but to hold that no prescriptive right has accrued to the plaintiff to receive light and air through the aperture 'C'. The lower appellate court has however erroneously taken into consideration the light and air coming to the plaintiff's room in question from the aperture 'C', and, therefore, his finding that there is sufficient air and light in the room on account of the existence of the aperture 'C and the door is vitiated.
13. Now it remains to consider whether the learned Senior Civil Judge was justified in taking into consideration the light and air coming through the door in the room. It may be relevant here to point out that the size of the room in which the aperture in question exist is about 12' x 24' and apart from the door there is no other source of light and air in the room except the apertures 'K' and 'L' as I have alreadly excluded from consideration the light coming from the aperture 'C'.
14. In Rajani Kanta v. Nirmal Chandra AIR 1945 Cal. 438 the learned Judge has observed as follows:
As regards the other observation of the learned Judge that the doors must be taken into account I am of opinion that there too he was in error.... It seems to me wholly contrary to the ordinary notions of people in this country that they should sleep in room at night with all the doors open. I may also point out that ordinary habitation must mean habitation for all the members of family and as the trial court pointed out such habitation, as suggested by the learned Judge, would not be appropriate in the case of female members. It seems to me therefore that the learned Judge was not right in holding that the grievance about want of ventilation could easily be removed if the plaintiff kept his doors open after providing them with iron bars and if the matter must be judged on the hypothesis that the doors would be closed at night, then clearly the learned Munsif's finding remains and there is a nuisance.
15. In opposition to the view taken in the Calcutta case learned counsel for the respondent has relied upon Veerappa Mallappa v. Nagappa Fakirappa AIR 1965 Mysore 292 The Mysore case; it may be observed, deals with altogether a different point. It was observed in this case that according to the Indian Law the prescriptive right to light and air can be acquired even through a door. The point which is being submitted for decision in the present case was not at all in issue before the learned Judge of the Mysore High Court, and, therefore, the Mysore authority, in my view, is not of any help for decision of this case. The point in issue in the present case, namely, whether the light and air coming through the only door in a room should be taken into consideration while deciding the question of Sufficiency or otherwise of light and air in a room should be taken into consideration while deciding the question of sufficiency or otherwise of light and air in a room was not at all dealt with in the Mysore case. Moreover in the facts and circumstances of the present case when after the closure of the apertures 'K' and 'L' there remains no other opening in the room except the door, I have no hesitation in coming to the conclusion that looking to the size of the room, the light and air coming into it through the door alone is not sufficient for reasonably comfortable use of the room. Then again the fact that there is only one door in the room is all the more a reason for holding that the light and air coming through it should not be taken into consideration. Thus when the light and air coming through the aperture 'C' and through the only door in the room is not taken into consideration, as I have already held, it should not be, the only conclusion is that an actionable nuisance is created on account of the closure of the apertures 'K' and 'L' which are the only source of light and air in the room. At this stage it may also be relevant to point out that the observation of the first appellate court that the plaintiff's evidence does not show that the diminution of light and air on account of the closure of these two apertures 'K' and 'L' would be such as to cause physical discomfort, is against the evidence on the record. P.W.1 Mohanlal has stated that by closure of these apertures they cannot live in the room. So also P.W 2 Manakchand has stated that there is no other source of light and air in the room in question except the two apertures 'K' and 'L., Apart from that, it is a matter of the common sense that if in a room of the size of 12' X 24' there is no other source of light and air except the door, the room is bound to be rendered unfit for a reasonably comfortable use by human beings. I am, therefore, not prepared to agree with the learned Senior Civil Judge in his conclusion that the plaintiff has failed to prove reasonable diminution of light and air in the room in question on account of the closure of the apertures 'K' and 'L'.
16. No contention has been raised by the learned counsel for the appellant regarding the other apertures alleged to be existing in the plaintiff's eastern wall overlooking the defendant's land.
17. In the result I allow this appeal, set aside the judgment and decree passed by the learned Senior Civil Judge, Sikar dated 31-8-1962, and hereby decree the plaintiff's suit to the extent that the wall or any other construction made by the defendant adjacent to the two apertures in the plaintiff's wall marked 'K' and 'L' shall be demolished. A perpetual injunction is further issued against the defendant restraining him from building wall and or any other construction upon up to a distance of 3' from the apertures 'K' and 'L'. The defendant shall keep a space of 3' from the apertures in question clear right upto the sky. In the circumstances of the case the parties are left to bear their own costs.