1. The plaintiff's suit is for a permanent injunction restraining the defendant from interfering with the right of easement to light and air through four openings. The City Civil Judge decreed the plaintiff's suit. On appeal Mr. Justice Phillips has reversed the decree of the City Civil Judge and dismissed the plaintiff's suit. The plaintiff has preferred this Letters Patent Appeal.
2. The plaintiff's case is that her house, No. 135, Govindappa Naick Street, George Town, has three windows on the southern wall and an aperture over the southern wall through which light and air came into her court-yard. The windows are Nos. 1, 3 and 4 and the aperture is No. 2 and the windows and aperture have been; in existence for over 20 years and she has acquired an easement for light and air through them and the defendant, the owner of No. 136, is building flush with the southern wall and thereby threatens to interfere with her easement right.
3. The defence is that the windows were put up and the aperture came into existence only ten years ago and the plaintiff has not acquired a right to have free access of light and air to her house through the windows and the aperture. The City Civil Judge alter a careful consideration of the evidence and the inspection of the plaintiff's house came to the conclusion that the windows and the aperture had been in existence for more than 20 years and that the plaintiff had acquired a right to have free access of light and air through them.
4. Mr. Justice Phillips differed from the finding of the City Civil Judge mainly on two grounds:
1. That the roof over the court-yard and the sunshades came into existence within 20 years and the evidence as to its existence in 1887 was disbelieved and that it is difficult to credit the evidence with regard to the windows.
2. The City Civil Judge did not say anything about the character or the trustworthiness of the plaintiff's witnesses and consequently there was nothing to guide him in estimating their evidence.
5. On the plaintiff's side seven witnesses were examined. P.W. 1 is shipping agent and he deposes that the plaintiff's house was rebuilt in 1887 by Nagarathna Mudali and that the windows existed then. He further deposes that the Mangalore title covering over the court-yard was put up about 30 years ago.
6. Plaintiff's witness No. 2 who attested the sale-deed in favour of the plaintiff (Ex. A) is the brother of Pappathi Ammal, the vendor to the plaintiff. He deposes that Pappathi Ammal bought the house from Nagarathna Mudali in 1895 under Ex. B, that the windows were in existence at the time of the purchase and the aperture over, the court-yard was also in existence and that Pappathi Ammal did not make any alteration to the house.
7. Plaintiff's witness No. 3 is the son of Pappathi Ammal and he joined in the sale-deed, Ex. A, in favour of the plaintiff. He says that the house was purchased 27 years ago and that, at the time of the purchase, the windows and the aperture over the court-yard were in existence.
8. Plaintiff's witness No. 4 lives in 134, Govindappa Naick Street, and he speaks to the existence of the windows and the aperture for over 20 years.
9. Plaintiff's witness No. 5 is a landlord and he has seen the house for over 20 or 25 years and says that the windows have always been there.
10. Plaintiff's witness No. 6 is Mr. Barker who was examined to prove the plan of the house says that the covering over the court-yard is 25 or 30 years old, and that the openings, meaning the windows, are 25 to 30 years old.
11. Plaintiff's witness No. 7 is an auditor in the Postal Audit Office on a pay of Rs. 120. He says that for the last 25 years he has been living in No. 2, Srinivasa Aiyar Street, and that he knows No. 135, Govindappa Naick Street. He is about 41 years of age and says that from his 15th year he has been seeing the windows and the sun-shade over them.
12. All these are respectable witnesses and they are not shown to be interested in any way in the plaintiff. Mr. Barker's evidence shows clearly that the windows are 25 to 30 years old and that the roof over the court-yard is also 25 to 30 years old.
13. In order to meet the evidence on the plaintiff's side the defendants have examined six witnesses. Defendant's witness No. 1 is a timber merchant. He says that he was a dubash of Messrs. Dymes & Co. from 1905 to 1912 and the Quilon Tile Works asked Messrs. Dymes & Co. to act as their agents in 1906 and before 1906 the Quilon Tile Works had no agency in Madras and the tiles which are on the covering over the court-yard are Quilon tiles and he wants the Court to draw the inference that the Quilon tiles were not brought to Madras before 1904. Mr. Justice Phillips relies upon his evidence and he remarks 'no attempt was made by the plaintiff to discredit this evidence until the case had been closed, when she asked for the issue of a commission to Quilon which was refused.'
14. The City Civil Judge thought that it was unnecessary to issue a commission to ascertain whether Quilon tiles were sent to Madras before 1904. The evidence of D.W. No. 1 is not supported by any record. If the defendants wanted to prove satisfactorily that no Quilon tiles were sent to Madras before 1904, they should have summoned the Bombay Co. for the production of the records of Messrs. Dymes & Co. Defendant witness No. I' s evidence even if true cannot be held to prove that no Quilon tiles were brought to Madras before 1906. The plaintiff could not have anticipated D.W. No. I ' s evidence and could not have asked for a commission before his evidence was actually taken and, therefore, no reliance can be placed upon the fact that the plaintiff did not ask for a commission in time to rebut the statement of D.W. No. 1
15. Defendant's witness No. 2 is a practising Engineer. His evidence is, that the sunshades were put up after the windows were built in the wall. He does not give any definite evidence and his statement that the tiled covering over the court-yard is-about 15 years old is not supported by any valid reason.
16. Defendant's witness No. 3 sold No. 136 to the defendants. She says that the windows 'were introduced after Ranga-natham Pillai purchased it.' Ranganatham Pillai was married 14 years ago and about that time these windows were put up and that the Mangalore tiled roof over the court-yard was put up after the plaintiff purchased the house in 1912. This evidence is on the face of it false, for D.W. No. 4 says that at the time of the marriage and before it (meaning Rangana-tham's marriage) the windows were in existence and he does not know for how long they were in existence and he is unable to say whether any alterations were made at the time of the marriage of Ranganatham Pillai. It is difficult to see why any new windows should have been placed in the southern wall of the house at the time of the marriage. On the other hand, there was no reason why the windows could not have been opened in the southern wall of plaintiff's house at the time when it was rebuilt by Nagarathna Mudali. In this part of the country, when houses are built, every attempt is made to get as much light and air from the southern side of the house; for, the southern breeze is required to cool the house during summer months, and therefore there was no reason why windows should not have been built in the southern wall of the house at the time when the house was rebuilt. Defendant's witness No. 5 says that portions of the house were built at the time of Ranganatham Pillai's marriage and that the owner of No. 136 objected to the putting up of the windows then. If the owner of No. 136 objected to the putting up of the windows more satisfactory evidence than that of D.W. No. 5 would be forthcoming. Defendant's witness No. 3 does not say she objected to the windows being opened overlooking her house.
17. The evidence of D.W. No. 6 shows that repairs to that house were effected at the time of Ranganatham's marriage. The evidence of the defence witnesses is not only not satisfactory but is also inconclusive. On the other hand there is the direct evidence of the plaintiff's witnesses who speak to the existence of the windows for over 25 years. If the windows were placed in the wall after the house was built, it would, be easy of proof; and the defendants have not attempted to prove by any satisfactory evidence that the windows were placed in the wall after the house was built. On the other hand, as already observed, there was no reason why Naga-rathna Mudali, when he built the house, should not have placed the windows on the southern wall. That the windows are necessary for the convenient enjoyment of the plaintiff's house is not seriously disputed. One window is in the landing of the room in which the staircase is placed and without that window the room would be very dark and the other windows are also necessary for the convenient enjoyment of the house. That being so, it is very difficult to believe that Nagarathna Mudali who re-built the house at a considerable expense did not place any windows in the southern wall of his house. The probabilities are, that the windows were placed at the time when the wall was built, and the evidence of Mr. Barker which has not been seriously challenged makes it clear that the windows have been in existence for more than 25 years or 30 years.
18. The main contention of the defendants is that the tiled roof was put up recently and that the plaintiff has not acquired an easement in respect of No. 2. The defendants state in the written statement that the windows and the roof were put up only 10 years ago. Defendant's witness No. 4 says that the windows were in existence at the time of Ranganatham's marriage. If the tiled roof was built only 10 or 12 years ago, the defendant could easily have proved it by the production of the plans submitted to the Corporation at the time when the plaintiff applied for permission to put up a tiled roof over the court-yard and shown conclusively that the tiled roof was only put up in 1912. The defendant has not attempted to prove anything of the kind. If the windows were put up within 20 years, the plans submitted to the Corporation at the time the windows were put up would prove the defendant's case. We hold that the tiled roof was put up more than 20 years ago.
19. Taking all the circumstances into consideration, we have no hesitation in coming to the conclusion that the three windows and the aperture over the court-yard have been in existence for more than 20 years and the plaintiff has acquired a right to light and air through the windows and the aperture.
20. The next question is, whether the plaintiff is entitled to a permanent injunction. Mr. T.M. Krishnaswami Aiyar contended that this is not a case in which permanent injunction ought to be granted restraining the defendant from putting up a wall on his own land. The windows are necessary for the convenient enjoyment of the plaintiff's house. If the windows are blocked up, the plaintiff's house would become almost uninhabitable and the aperture over the court-yard is necessary for the purpose of light and air coming into the plaintiff's kudam. The plaintiff is not bound to remove the tiled covering over the court-yard in order to help the defendant to put up a high wall close to it. Even if there was no covering over the court-yard, the defendant's wall raised as high as 20 feet' would materially affect the quantity of light and air that would come into the plaintiff's house. As already observed the existence of windows and openings on the southern wall of a house is necessary for the comfort of the inhabitants of the house; for, the southern breeze is very much valued in this part of the country.
21. We, therefore, hold following the principle laid down in Ramanuja Naidu v. Apparanji Ammal : (1911)21MLJ313 that this is a fit case in which the plaintiff ought to be given a permanent injunction restraining the defendant from obstructing the windows and the aperture over the court-yard by raising a wall on his land. In the result the appeal is allowed, the decree of the learned Judge is set aside and that of the City Civil Judge is restored with costs throughout.