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T.R. Bhushnam Vs. C. Umapathi Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad870; 159Ind.Cas.888
AppellantT.R. Bhushnam
RespondentC. Umapathi Mudaliar and anr.
Cases ReferredPazun Daung Bazar Co. Ltd. v. Ellenman
Excerpt:
- .....in question. it was on the second ground that the controversy centred during the trial. the trial judge found that though the proposed wall would cause some diminution of light and air the diminution would not be so much as to cause physical discomfort. he was of opinion that in the circumstances no injunction should be granted as desired by the plaintiff but that the defendants should pay rs. 150 as damages to the plaintiff on condition of paying which they were to be at liberty to raise the height of the present wall by 10 feet 8 inches. the plaintiff appeals and the defendants have not filed any cross-objections.2. the only point for determination in this appeal is whether in the circumstances of the case the plaintiff is entitled to an injunction as prayed for by him. the.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the City Civil Judge, Madras, dated 15th October 1934, in O.S. No. 51 of 1933, a suit for a declaration that the plaintiff is entitled to free passage of light and air through the aperture marked A and the windows marked B, C, D, E and F in the plan attached to the plaint and for a permanent injunction restraining the defendants from raising any wall or other structure on their premises to the south of the plaintiff's house which might have the effect of obstructing such free passage of light and air. The plaintiff and the defendants are the owners of two contiguous houses Nos. 13 and 12, Kuppumutha Mudaly Street. The plaintiff built his house in 1905 and his house has got, besides the ground floor, a first floor and also a second floor. The second floor, however, is not material for the purpose of the present suit. The plaintiff's case is that the defendants are attempting to raise a wall 12 feet above the existing wall of their house in order to build a terraced upstairs and that this wall will shut out the light and air which formerly used to enter through the apertures mentioned above. The defendants resisted the suit on two grounds, namely that the plaintiff had not acquired an easementary right to light and air by prescription as alleged by him and also that the proposed wall would not substantially diminish the light and air which used to be admitted through the apertures in question. On the first point the evidence was all one way, namely that the apertures were in existence from 1905 or 1906 and that therefore the plaintiff had acquired an easementary right by prescription to light and air with regard to the apertures in question. It was on the second ground that the controversy centred during the trial. The trial Judge found that though the proposed wall would cause some diminution of light and air the diminution would not be so much as to cause physical discomfort. He was of opinion that in the circumstances no injunction should be granted as desired by the plaintiff but that the defendants should pay Rs. 150 as damages to the plaintiff on condition of paying which they were to be at liberty to raise the height of the present wall by 10 feet 8 inches. The plaintiff appeals and the defendants have not filed any cross-objections.

2. The only point for determination in this appeal is whether in the circumstances of the case the plaintiff is entitled to an injunction as prayed for by him. The trial Judge's finding that the plaintiff is entitled to damages appears to imply that the proposed wall would cause so much diminution of the light and air that used to be admitted through the apertures in question as would amount to a nuisance, for it is only if the proposed wall would be a nuisance that damages could be granted. It is however clear from a reading of his judgment that this was not what he intended to find; there are several passages in the judgment from which it is clear that the trial Judge was of opinion that though there would be some diminution of light and air the diminution would not be such as would cause physical discomfort. Damages appear to have been granted by the trial Judge not because he found that the proposed wall would be a nuisance or would constitute an infraction of the plaintiff's right of easement but as some compensation for diminution of light and air. On the findings of the learned trial Judge it would not be possible to support his order requiring the defendants to pay the plaintiff Rs. 150 as damages ; but as there has been no appeal from this order either in the form of a separate appeal or in the form of cross-objections, the order regarding damages must stand. That order however cannot be regarded as sufficient to establish the fact, that the proposed wall would be a nuisance; and that question has to be decided independently in the light of the evidence in the case and of the circumstances.

3. The evidence in the case is mainly that of two retired Engineers, one on each side. P.W. 5, a Retired District Board Engineer, has given evidence on behalf of the plaintiff and D.W. 1, who is a Retired Engineer of the Madras Corporation, has given evidence on the side of the defendants. According to P.W. 5 the reduction of the light and air will be substantial. Though in examination-in-chief he stated that the ground floor would lose all the light if the proposed wall is built; he admitted in cross-examination that there would be some light even if the proposed wall is built and that the chief complaint was the absence of breeze from the south. His evidence does not show that the diminution of light and air would be such as to cause physical discomfort. This consideration of physical discomfort does not appear to have been present to his mind nor was it put to him during his examination.

4. On the other hand, D.W. 1 was of opinion that the proposed wall would not cause any diminution in the necessary amount of light and air required for the purpose of health. He also states that according to a rule made by the Sanitary and Health Experts of the Government an open space of 6 feet is sufficient for the purpose of admission of light and air. This space of 6 feet is available to the plaintiff. So far as the evidence goes therefore it would appear that it has not been proved by the plaintiff that the proposed wall would cause physical discomfort by diminishing light and air to such an extent as would have that consequence. The locality is a congested one according to the trial Judge, and most of the houses in the locality even have common walls. In a locality of this kind people cannot expect and do not expect as much light and air as they would do in more open localities; and the test that has been applied by the learned trial Judge in this matter, namely whether the quantity of light and air that would be left if the proposed wall is built would not be enough for the comfortable use and enjoyment of the plaintiff's house according to the ordinary requirements of people who live in the locality appears to be the correct test. It is enough in this connexion to refer to Paul v. Robson 1914 P.C. 45. In particular the following passage quoted in that case would appear to, show that the test adopted by the trial Judge is the correct one:

There must be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action; and as long as he receives through the windows of his dwelling house, or, in the case of a particular room in his dwelling house through the windows of that room, an amount of light which, to use the words of James, L.J. in Kelk v. Pearson (1871) 6 Ch. 809, is sufficient 'according to the ordinary notions of mankind for the comfortable use and enjoyment' of his dwelling house or of the room in it, as the case may be, no nuisance has as regards him been created and no legal wrong has been inflicted upon him.

5. A case of this kind is governed by Section 35, Easements Act, according to which, subject to the provisions of Sections 52 to 57, Specific Relief Act, an injunction may be granted to restrain the disturbance of an easement where the disturbance is only threatened or intended (as in the present case) when the act threatened or intended must necessarily, if performed, disturb the easement. Though the word used in this section, namely disturb may not prima facie appear to connote a tort or civil wrong, it is clear from the ruling in Framji Shapurji v. Framji Edulji (1906) 30 Bom. 319, that the word 'disturb' found in this section must mean an illegal obstruction or, in other words, an obstruction in respect of which a suit would lie. It would therefore follow that whether the act in question has been committed or only threatened or intended, there must be a right to sue or, in other words, there must be a civil wrong before any injunction can be granted just as there must be a right to get damages before an injunction can be granted. Damages and injunction are two remedies alternative in character given in respect of the same wrong, namely, an infraction of the legal right by way of easement; and such an infraction takes place only when the deprivation is such as to amount to a nuisance. It appears to me that in this case the plaintiff has really not established the fact that the proposed wall would amount to a nuisance or that the deprivation of light and air which it would cause would amount to a nuisance. Even otherwise, the plaintiff has to show before he can succeed in this appeal that the trial Judge has exercised his discretion wrongly in refusing to grant an injunction. It does not follow that, even if the trial Judge was of opinion that the plaintiff was entitled to substantial damages, he must have been necessarily granted an injunction. The matter is one of discretion.

6. The question is, can it be said that he exercised his discretion wrongly? He was of opinion that where damages would be an adequate remedy no injunction should be granted and he relied on Section 56, Specific Relief Act. It would appear that in relying on Section 56, Specific Relief Act, the trial Judge had in his mind Clause (i) of that section which is to the effect that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in the case of breach of trust, an injunction cannot be granted. This view has-been also adopted in a recent case in Pazun Daung Bazar Co. Ltd. v. Ellenman's Arracan Rice and Trading Co. Ltd. 1934 Rang. 144, where it has been stated that in this respect the law of India differs materially from the law of England and that a Court in India is not concerned with the conduct of the-defendants but only with the question whether the invasion of the plaintiff's right is such that pecuniary compensation would not afford adequate relief. I would also add that apart from Clause (i), Section 56, Specific Relief Act, Clause (g), also would apply to the present case in my opinion, for am not at all satisfied; that in this case the proposed wall would amount to a nuisance if built though it would to some extent be inconvenient and diminish to some extent the light and air that is now available to the inmates of the plaintiff's house. In these circumstances I am of opinion that the plaintiff appellant has failed to show that the trial Judge was wrong in refusing to grant an injunction as prayed for by him. The appeal therefore fails-and is dismissed with costs.


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