1. This is a plaintiff's appeal against the decision of the Subordinate Judge of 24 Parganas, dated 28th November 1925, which reversed the decision of the Munsif of Alipur, dated 1st July 1924. The plaintiff commenced the suit for the removal of a verandah and a wall which Obstructed her windows. The case stated in the plaint is that premises No. 91, Kansaripara Road, Bhawanipur, which is at present numbered as 570 of the said road, belonged to the plaintiff's father. Kakhal Chandra Das. The plaintiff purchased a part of this premises from her father on 20th February 1906 and has been in possession of it since her purchase. There is a verandah on the north of the purchased land which she, the plaintiff, claims, passed to her by the conveyance of 20th February but the land underneath the verandah remained with the vendor, her father. There was a stipulation in the deed of sale of 1906 that, if the plaintiff required, the verandah will be removed by the plaintiff's father in case the plaintiff required the same for the purpose of effecting repairs to the purchased land and building. There were also two windows on the disputed land which have been in existence, as the evidence shows, since the building was erected so' far back as 50 years from now. The defendant, who is the son of Rakhol and the brother of the plaintiff, has raised a wall right across these windows and this has given rise to the cause of action for the removal of the wall. The defendant, who has now succeeded to Rakhal's estate after his death, also refused to remove the verandah although the plaintiff required the removal of the verandah for the purposes of effecting repairs to her building. Several defenses were taken to the suit by the defendant. It was stated that, according to the terms of the deed of sale the defendant is not bound to 'remove the verandah and that the house does not want repairs. It was further stated that, the windows open on the private apartments of the defendants and the wall does not harm the plaintiff in any way.
2. These defences were negatived by the Munsif who granted a decree to the plaintiff and directed that the defendant do remove his verandah and wall within a certain date and, if he refused to remove the same, the plaintiff might remove the same at her own cost and then realize the costs from the defendant and that the plaintiff should be given sufficient access of air and light through the two windows which formed the subject-matter of the plaint. An appeal was taken against this decision of the Munsif to the Subordinate Judge 24 Parganas. The learned Subordinate Judge reversed the decision of the Munsif with reference to both the causes of action. He held with regard to the removal of the verandah that the best evidence hag not been produced to show that the plaintiff required the removal of the verandah for the purpose of effecting repairs. The plaintiff examined her son, her son-in-law and another witness who all testified to the fact that the plaintiff's house was in a bad condition and required repairs. The learned Subordinate Judge seems somewhat hypercritical in his criticizm of the evidence of these witnesses who were most competent to speak to the fact as to whether the house required repairs or not. The learned Subordinate Judge proceeds to state that, in his opinion, there should be definite and best evidence regarding the need for repairs before the defendant can be called upon to remove the verandah in question, and such evidence has not been produced. I think, on a construction of the kobala, it was enough if the plaintiff came to Court and said that she required the removal of the building for the purpose of effecting repairs. The language of the deed of sale is as follows:
3. If in future you require to repair your buildings then I shall demolish and remove the verandah.
4. This language certainly suggests that the question as to whether repairs were needed or not would depend entirely on what the plaintiff thought. She now claims the removal of the verandah, be cause, in her opinion, repairs are required. She has examined her relatives who were most competent to speak to the need for repairs. In the face of this I do not think the Subordinate Judge was justified in dismissing the claim of the plaintiff for removal of the verandah on the ground that the best evidence has not been produced. There has been a defect of procedure in the trial of this part of the appeal which has affected the merits of the case which calls for interference of this Court in second appeal.
5. With regard to the other cause of action about the removal of the obstruction of the two ancient windows, the Subordinate Judge has also gone wrong. His view is that no 'right of easement could be acquired as the purchase of the plaintiff was within 20 years of suit and no right of easement could be acquired by the plaintiff as her vendor could not have acquired any such right over his own land. The true rule applicable in cases of this kind is stated in the well-known treatise of Goddard's Law of Easement, 7th edn., at p. 282, where the learned author states as follows:
If a sellmans a house which has windows overlooking adjoining land which he retains he cannot, as a general rule, afterwards stop the light from coming to the widows of the house by building on the land for, when granting the house, he is presumed to have granted also a right to light to the windows or to have covenanted not to obstruct them and he may not subsequently derogate from his own grant or violate his covenant; so also if after; selling the house he sells the land to a third person, the latter may not obstruct the light from coming to the windows, for the vendor could only convey the land subject to the same obligations to which it was subject in I his own hands.
6. The true principle underlying cases of this kind is that the plaintiff is entitled to have the enjoyment of the light and air of the ancient windows in the same manner as it was enjoyed during the unity of possession, that is, when his property as well as the property of her brother remained the property of their father. The principle which I have stated receives support from the, decision in the case of Coutts v. Gorham which is cited at p. 129 of Gale on Basement, 10th edn., 1925. In that case the windows were made within 20 years, but before the lease granted by the owner in favour of the person named Coutts, and it was pointed out that, assuming that the windows were made within 20 years but before the lease made to Coutts. Gorham's present interest is derived from the same lessor at a subsequent period, and is, therefore, subject to the rights which Coutts already had against his lessor and, consequently, to that of his having the windows in question free from any obstruction.
7. I think, in the view with regard to the two causes of action which I have taken, the appeal must be allowed, the decision of the Subordinate Judge must be set aside and that of the Munsif restored with costs.