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Ganga Charan Dhar Vs. Satkari Lal Dey and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal113
AppellantGanga Charan Dhar
RespondentSatkari Lal Dey and anr.
Cases Referred and Debendra Nath Bagchi v. Surendra Nath Sur
Excerpt:
- .....right of easement by prescription; he also asserted that there was an acquisition of the right by implied grant.2. the cause of action as stated by the plaintiff was that there was obstruction to the passage of light and air caused by the action of the defendant who had raised two walls in october 1925, which had the effect of closing up the two windows mentioned above. the case of the plaintiff was that these walls raised by the defendant were so close to the windows that they could not be opened at all. the defendant denied the right of easement as claimed by the plaintiff in the suit, and it was asserted that there was no right of easement in favour of the plaintiff, and that none could be presumed. the defendant specifically stated in the written statement that no implied grant in.....
Judgment:

Guha, J.

1. The plaintiff in the suit out of which this appeal has arisen, prayed for a declaration of his right of easement in regard to light and air. The house in respect of which easement was claimed was purchased from the father of the defendant in the year 1912 by a kabala in which there was no special mention of any right by way of easement, as there was complete unity of title so far as the plaintiff's property in suit and the contiguous property of the defendant were concerned. The kabala purported to transfer the title of the father of the defendant to the house. It was stated by the plaintiff in his plaint that there were two windows on the southern wall of the southern room of the house which could be opened and closed, that these windows let in light and air into the room aforesaid. The plaintiff claimed right of easement by prescription; he also asserted that there was an acquisition of the right by implied grant.

2. The cause of action as stated by the plaintiff was that there was obstruction to the passage of light and air caused by the action of the defendant who had raised two walls in October 1925, which had the effect of closing up the two windows mentioned above. The case of the plaintiff was that these walls raised by the defendant were so close to the windows that they could not be opened at all. The defendant denied the right of easement as claimed by the plaintiff in the suit, and it was asserted that there was no right of easement in favour of the plaintiff, and that none could be presumed. The defendant specifically stated in the written statement that no implied grant in favour of the plaintiff could be inferred in favour of the plaintiff. The windows according to the defendant were closed up with nails and iron straps at the time when the house was sold in 1912; and this was done with the object of securing the convenience and privacy of the defendants' garden and privy, which were overlooked by the windows in question. It was stated by the defendant that the walls mentioned in the plaint were erected for the purpose of securing the privacy of the defendants' house, as the windows were in a broken condition.

3. On the pleadings of the parties several issues were raised for trial in the suit. The first of these issues related to the question whether there was any cause of action for the suit: had the plaintiff a right to sue. The question of acquisition of right of easement by prescription was specifically raised in one of the issues, and issue 7 was on the question whether the right of easement in regard to light and air, as claimed in the suit was ever granted to the plaintiff. In view of the points arising for consideration in this appeal, reference to none of the other issues raised in the suit require special mention. The Court of first instance dismissed the plaintiff's suit. On appeal by the plaintiff, the Court of appeal below has reversed the decision of the trial Court, and has passed a decree in favour of the plaintiff allowing his claim in suit. The learned Subordinate Judge in the Court of appeal below has held that the plaintiff will have his right to open the windows and to receive light and air through the windows unobstructed, by removing the iron straps and nails from the shutters, and by removing the walls erected by the defendant.

4. In this appeal by the defendant, the first question raised related to this, that there was an omission of any stipulation regarding passing of easements in the kabala on which the plaintiff's title to the house in regard to which easement is claimed, was based, and that negatived the case of an implied grant; it was further contended that no case of an implied grant was made in the plaint, and there was nothing before the Court from which an inference of any implied grant could be inferred, in favour of the plaintiff. In view of the pleadings of the suit which I have examined carefully, regard being had to the issues raised in the case, and regard being also had to the materials! before the Court in support of the plain-tiff's case, it cannot, in my judgment be reasonably urged that the plaintiff did not rest his claim in suit on an implied grant also, although right of easement by prescription was claimed in the suit. The conveyance did not specifically mention any easement but the passing of the entire interest of the vendor, without any reservation was unequivocally expressed in the document. Interpreted according to the ordinary rules of construction, there was an implied grant of easement by the conveyance and such a grant could be inferred in the case of a severance of tenements by the common owner. Whether or not an easement of the nature claimed in this case, passed by the conveyance is a matter of construction of the instrument. The meaning of general words used in the conveyance is to be determined according to the intention of the parties as expressed in the instrument, and as ascertainable from the state of circumstances existing at the date of its execution: see Kay v. Oxley [1875] 10 Q.B. 360 Bayley v. Great Western Bail-way Company [1884] 26 Ch. D. 434 and Roe v. Siddons [1888] 22 Q.B.D. 224.

5. It Seems to be clear from the conveyance Ex.7 in the case, that it was implied that the purchaser took the property with easements of light and air; and the purchaser was entitled to have the enjoyment of light and air of the windows, in the same manner as it was enjoyed during the unity of title and possession. The defendant has, as noticed by the Court below, failed to make out any reservation of rights, so as to debar the plaintiff from the right to enjoy the light and air of the windows as claimed in the suit, in the same manner as it was enjoyed at the time when the property of the plaintiff as well as that of the defendant was the property of the plaintiff's vendor. In the above view of the case, the learned Subordinate Judge in the Court of appeal has rightly held that the case of an implied grant was clearly made out by the plaintiff. The present case is not one in which right of ease-meat could be claimed by prescription.

6. The question that has to be considered next is whether the plaintiff had any cause of action for the suit; was there any such disturbance of an easement, any obstruction of light or air in this case, which could be said to be wrongful or actionable. The law takes no notice of an obstruction which has its origin in the caprice or sentiment of the aggrieved party. The law also does not concern itself with an obstruction which is trivial or immaterial. In order to amount to a disturbance, the act complained of must have caused substantial damage; and the condition of substantial damage is satisfied as regards easements of light and air by any obstruction which materially affects the comfortable or beneficial use of enjoyment of the dominant tenement or lessens its selling or letting value: see Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179 Kine v. Jolly [1905] 1 Ch. 480 and Debendra Nath Bagchi v. Surendra Nath Sur : AIR1927Cal345 . In the case before me, it has been found as a fact by the Court of appeal below that the windows in question remained open all along, and that through them light and air entered plaintiff's house unobstructed till the defendant caused disturbance of the easement by raising walls, in front of the windows in October 1925. The learned Judge has further stated in his judgment that he preferred the evidence on the side of the plaintiff; and the material portions of that evidence placed before me, clearly indicated that there was disturbance of easement, obstruction of light affecting the comfort and convenience of the dominant premises, an effective shutting out of the flow of air through the windows in question.

7. In my judgment therefore the decision arrived at by the Court of appeal cannot be assailed on any of the grounds raised in this appeal, and it must accordingly be affirmed. The appeal is dismissed with costs.

8. The defendant-appellant is allowed two months time from this date, to comply with the direction contained in the decree passed by the Court below, so far as it is binding on him.


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