Charles Arnold White, Kt., C.J.
1. This is an appeal from a decree of Mr. Justice Bakewell directing the defendants to remove a certain wall which is marked in the plan, and perpetually restraining them from erecting any wall or building so as to obstruct the access of light and air through the three openings on the southern wall of the plaintiff's house. The allegation in the plaint - paragraph 4 - is : - 'That the defendants have recently commenced to erect on the first floor of their house a structure which is calculated to. interfere with the plaintiff's right of light and air to the windows, doors and rooms on the southern side of her house, which right the plaintiff claims as a right by reason of her house having been built for upwards of 20 years, and thereby having acquired by peaceable enjoyment a right of light and air thereto.'
2. Now, three points were taken in appeal. The first point was that the plaintiff had not proved 20 years' enjoyment of the right by way of easement. The second point was that, assuming 20 years' enjoyment was proved, there was no such damage as would give to the plaintiff a right of action with reference to the acts done by the defendants. The 3rd point was that, assuming there was a right of action, the proper remedy was by way of damages, that the injunction was improperly granted and that that injunction should be dissolved.
3. Now, the first point was not very seriously contested. A Municipal document was put in which goes to show that the building was originally constructed in 1888 or 1889. Two witnesses were called with reference to this part of the case on behalf of the plaintiff. One was the man who actually built the house in question. He said he built it 20 or 22 years ago for Andoo Chetty. In cross-examination he no doubt said that he could not say whether it was 16, 18, 20 or 22 years ago that he built the house. Another witness was called on behalf of the plaintiff with regard to this question. He was the plaintiff's agent who looked after her affairs in Madras. He said that 'the house was built 20 or 25 years ago. I remember it being built. The whole house was built then.' As to the time when the house was built he was not shaken in cross-examination.
4. Then, with regard to the question whether the house had continued to be the same as it was originally constructed, the first witness, who was the builder, said : 'I saw the house this morning, and there was no alteration since Andoo Chetty's death and he also said 'during Andoo Chetty's time no alteration was made.' The other witness said : 'No alteration has been made in No. 8. It exists as it did 20 years ago.' It was suggested that some of the sons of Andoo Chetty were alive and that they might have been called. This is a fair observation. Still, I think there is evidence to show that the plaintiff has had 20 years enjoyment of the easement right which she claims in this case. Therefore, I agree with Mr. Justice Bakewell's finding as to that.
5. Then, as regards the second question, that is, whether the right by way of easement is established by the evidence. It is argued that the erection of the wall did not cause such damage to the plaintiff as would give her a cause of action. Now the finding of fact by the learned judge is in the following terms - (paragraph 3 of the judgment): - 'I think it is clear that the wall complained of by the plaintiff is not intended to form part of a building, but is a bare wall intended to obstruct the access of light and air to the openings in the plaintiff's southern wall, or at most to secure privacy to defendants' house. The wall is practically flush with the plaintiff's wall and prevents the verandah windows from being opened, and thus not merely diminishes the amount of light and air coming to the openings in plaintiff's house, but practically prevents all access of light and air to them and thus totally deprives him of the right which he has hitherto enjoyed. It is obviously of considerable importance to the plaintiff to maintain the access of light and air to this central wall of his house unimpaired, and that the opening at the top is not sufficient to compensate him for the loss of the side light and air. It is possible that little direct sun-light passes through the grating No. 3, into this wall, since it faces towards the south but a considerable portion of diffused and reflected light must pass through it and of course it would receive the direct southern breeze which in Georgetown is a matter of considerable importance.'
6. Now, the learned Judge does not discuss the evidence in detail with regard to these three openings with reference to which, the plaintiff says, access of light and air has been obstructed. I think I may say that on the evidence and on the admission made by learned Counsel the matter stands thus : There are three apertures or openings on the southern side of the plaintiff's house. The first is the southern end of a verandah which is protected by shutters. The verandah is open on the eastern side and it is also open on the northern side, and, of course, light and air find their way toth is verandah on the eastern side to a considerable extent, as the verandah is oblong, and to a less extent on the northern side. Then the second opening is of the nature of a grating which affords some degree of light to the privy. It is not clear on the evidence, and there is no finding as to whether there is any other means for the access of light and air to this privy. The house contains two privies. There are certain openings which provide for access of light and air to one of the privies; but whether it is the upper privy, or the privy which is furnished with the grating which the plaintiff says has been blocked up, is not clear. The third opening is an opening into something in the nature of a quadrangle, which contains an opening on the top looking towards the sky which is protected by bars and an opening to the south also protected by bars which the plaintiff says has been blocked up by the erection of the wall by the defendants. It is not suggested that there is any other means for access of light and air to the quadrangle or 'well' as the Judge calls it, except the light and air which comes from the top or from the opening which has been blocked up. In a sense, the facts are not disputed, or, at any rate, are not in dispute on the question - that the wall built by the defendants is flush with the southern side of the plaintiff's house. The learned Counsel for the defendants said the distance was about 7 inches from the grating. At any rate it is not contested that the finding of the learned Judge that the wall is practically flush is not justified by the evidence. So it is perfectly Clear that the erection of the wall had the effect of blocking up light and air to these openings into the plaintiff's house on the south.
7. There is the further question, - having regard to the other means of access for light and air, what is the effect of the blocking up of the opening on the southern side? And for that purpose an expert witness was called on one side, and another expert witness was called on the other - both gentlemen of long experience and unimpeachable integrity. As usually happens with regard to evidence of this character, the witnesses differ.
8. There is contradictory evidence of the question as to how far the condition of the premises with reference to light and air, having regard to the other means of access for light and air, was affected by the wall which the defendants had built, I do not think it necessary to go through the evidence in, detail. Mr. Reynolds, who was called for the plaintiff, speaking of the verandah, no doubt said, in cross-examination : 'In the verandah itself I should think there would be enough light for ordinary purposes if the south window were closed.' It is perhaps unfortunate that the two experts did not make their inspections under exactly similar conditions; because Mr. Reynolds who was examined for the plaintiff seems to have made his inspection between 5-30 and 6 30 P.M., and Mr. Pogsoh who was examined for the defendants made his inspection between 2-30 and 3 P.M., when the light would be much stronger. Mr. Pogson, in his examination-in-chief, said : 'The closing of these verandah windows will hardly affect light and air to the verandah at all.' Then with regard to the latrine he says : 'If a small window were put on the eastern side of the latrine, it would be sufficient to light it. That piece of evidence goes to suggest that there is, in fact, no other means of light to the privy except the grating on the south which the plaintiff had blocked up.
9. Now, taking the learned judge's finding of fact in connection with the admissions made in court and in connection with the evidence to which I have referred - I do not profess to have dealt with the evidence exhaustively, but, taking all these together-speaking for myself, I am prepared to hold on these facts that, applying the test which is laid down by the House of Lords in Colls v. Home and Colonial Stores, Limited (1904) App. Cas. P. 179 the plaintiff has a right of action. It is said there that to constitute an actionable obstruction of ancient lights, it is not enough that the light is less than before. There must be a substantial deprivation of light enough to render the occupation of a house uncomfortable according to the ordinary notions of mankind.
10. Now, Mr. Smith has contended on behalf of the respondent that under the law of India her rights with reference to the easement which she acquired by prescription are wider than under the English law as laid down by the House of Lords in the case I have just referred to. He relies on Section 28 of the Easements Act. I do not propose to discuss this question or to express an opinion with regard to it, because, as I have said, I am willing in the present case to adopt the test laid down by the House of Lords and applying that test I hold, on the facts, that, here, there has been a deprivation of light enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind.
11. That therefore disposes of the second question. Now, the third question raised in appeal is one which, in my opinion, is of greater difficulty. The learned Counsel for the appellant has argued, with great ability, that even if we are against him on the other two points, the proper relief to be given to the plaintiff in this case is damages, and that an injunction is not the remedy which this Court ought to grant. He relies upon Sections 54 and 56 of the Specific Relief Act. Section 54 says : 'Subject to the other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted where the invasion of the right is such that pecuniary compensation would not afford adequate relief.' Section 56 says that 'an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings.' Counsel relied upon the judgment of this Court in the case of Boyson v. Deane I.L.R. (1898) M. 251. There, Mr. Justice Sheppard, with reference to the English law says : ' There the right to an injunction is the prima facie right. Here in India an injunction is not to be given when the remedy in damages is considered adequate.' With regard to the application of the test, the learned judge points out that the testis practically a difficult one to apply. I refer to page 254 : 'On the one hand,' he says 'there can be no disturbance of an easement on which a pecuniary value cannot be placed because it is always, possible to ascertain the difference in the selling value of the property brought about by the obstruction of which complaint is made. On the other hand, if the phrase means 'such a compensation as would, though not in specie, in effect place the plaintiffs in the same position in which they stood before,' it would, as observed by Farran J., be difficult to predicate of any material obstruction to ancient lights that pecuniary compensation could bring about that result.' If I had to decide the question whether the equitable jurisdiction of this court on its original side is restricted or cut down by the express provisions of the Specific Relief Act, I should certainly take time to consider the question further. No doubt that is the view which was taken by Mr. Justice Sheppard in the Madras case to which I have referred, and it was the view taken in the Bombay cases to which the learned Counsel for the appellants has referred us, viz., Dhunjibhoy Cowasji Umrigar v. Lisboa I.L.R. (1888) B. 252 and Ghansham Nilkant Nadkarni v. Moroba Ramchandra Pai I.L.R. (1894) B. 474. I confess I am not altogether satisfied that that is the law, and I find a passage in BANEKJEE'S work on 'Specific Relief' to which my learned brother has referred me. I do not read the whole passage It runs : (page 754) - 'The result of the recent cases, truly observes Mr. Nelson, is to make injunction the rule and, damages the exception. The Specific Relief Act, however, was framed at a time when a more restricted view of the equitable jurisdiction seems to have prevailed, and it has even been suggested at Bombay that in cases before courts subject to this Act later English decisions have no application. But this, suggestion has been repudiated at Allahabad, and it is hard to see why in interpreting and applying the provisions of an enactment admittedly based upon the principles of English equity jurisprudence, the latest and most approved authoritative expositions of those principles should not be resorted to.' I do; not propose to discuss this question or to express an opinion with regard to it, because, for the purposes of the present Case, I am prepared to adopt the test adopted by Mr. Justice Snppeard in XXII Madras, and to deal with this case on the assumption that the plaintiff must show that adequate compensation cannot be given her by way of damages. On the facts here I am prepared to hold that seeing that the wall is admittedly built flush with the plaintiff's house and that the effect of this is, so far as the means of access for light and air on the southern wall are concerned, to prevent them entirely, and, applying the test in a common sense way, I am prepared to hold on the facts that this is not a case in which adequate compensation can be given by way of damages, or a case in which equally efficacious relief can certainly be obtained by some other usual made of proceeding.
12. One word with regard to the observation of Mr. Justice Sheppard in XXII Madras (page 255). There he says : 'I think it is most important that no attempt has been made to prove that the plaintiffs cannot * * * so alter or re-arrange * * * as to neutralize the effect of the defendant's building. If this is possible, I do not see how the plaintiffs can say that compensation in money will not afford them adequate relief.' Now, the learned judge cites no authority for that proposition and the learned Counsel for the appellants has cited no authority. With great respect, as at present advised, I should not be prepared to assent to that proposition of law. I think I have dealt with all the questions which have been raised excepting the question of costs. I am always reluctant to interfere in the matter of costs which are in the discretion of the learned judge. In this case the learned judge gave the plaintiff costs upon the higher scale. Now, the rule empowers the judge to award costs on the higher scale for special reasons. The learned judge says - 'The defendants must pay the costs of suit * * Under the circumstances I direct them to be taxed on the higher scale.' He gives no reasons why costs on the higher scale should be given and I must say, speaking for myself, I fail to see any circumstance in this case which constitutes 'special reasons' within the meaning of the rule. If the learned judge had specified any special reasons I should certainly not be disposed to interfere; but, as he has not, I think the plaintiff should only have costs on the lower scale. Subject to that, I am of opinion that this appeal must be dismissed with costs.
Sankaran Nair J.
13. I agree.