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Provabutty Dabee Vs. Mobendro Lall Bose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal453
AppellantProvabutty Dabee
RespondentMobendro Lall Bose
Cases Referred and Ayusley v. Glover
Excerpt:
ancient lights - enlargement of window--obstruction--notice-delay--mandatory injunction. - .....to access of light rough that window. if the window is twenty years old, she has acquired (sic) le right to light, subject to the question i shall refer to presently, as to the enlargement of the window. if the windo is not twenty years old, she has not acquired that right.4. on the part of the plaintiff a largo body of evidence has been given: evident of a satisfactory kind,-that is, evidence of the right class of persons. the first witness called by the plaintiff was omritolall gangooly, the owner of the premises no. 57, part of what was formerly no. 31, out of which several plots, including 56 and 63, the premises of the plaintiff and defendant, have been carved out. he says, that, from the earliest time, he recollects that that room was in existence, and the north wall, and a window.....
Judgment:

Wilson, J.

1. The plaintiff in this suit is the owner of the house No. 56, Punchanuntollah Lane; the defendant is the owner of the house No. 63 in the same lane; and as to a portion of the two houses, No. 63 stands immediately adjacent to and north of the north wall of No. 56. Trio plaintiff complains that, in the course of certain building operations which took place in No. 63, the defendant has built a wall so as to block up altogether the light to a window of the north wall of No. 56, by which light was afforded to one of the rooms of that house, and has encroached laterally on the soil of No. 56, interfering with the cornice, which has been variously described by the witnesses as a brick band, a string course, and a sailing course.

2. The first question is, whether the plaintiff has shown a right to access of light through that window: 2 idly, whether there has been a lateral encroachment; and 3rdly, what is the remedy.

3. The first question is of great. (sic)-'rUnce to the plaintiff,-namely, whether she has a right to access of light rough that window. If the window is twenty years old, she has acquired (sic) le right to light, subject to the question I shall refer to presently, as to the enlargement of the window. If the windo is not twenty years old, she has not acquired that right.

4. On the part of the plaintiff a largo body of evidence has been given: evident of a satisfactory kind,-that is, evidence of the right class of persons. The first witness called by the plaintiff was Omritolall Gangooly, the owner of the premises No. 57, part of what was formerly No. 31, out of which several plots, including 56 and 63, the premises of the plaintiff and defendant, have been carved out. He says, that, from the earliest time, he recollects that that room was in existence, and the north wall, and a window in that wall. I think he speaks the truth. The next witness was Radha Gobind Chatterjee. He has lived a great number of years on the premises, and remembers the wall and the window. The next witness is Ramlall Koberaj, a very important witness: he swears to having lived a long time in the house. His father was the family Koberaj. 1 think he speaks the truth. The next witness is Preonath Mookerjee' He remembers the window and wall. The next was Nityanund Pyne. He remembers the wall and the window.

5. Some of the witnesses recollect the alteration to the window.

6. There are at least three persons, Omritolall Gangooly, Ramlall Mookerjee and Preonath Mookerjee,-all of whom lived in the house and used the privy That is evidence of a character which must carry very great weight, unless there be anything to discredit it.

7. Then we have the evidence on the part of the defendant, of the man who was the intermediate owner of the premises, Soorjee Coomar Bose. Ho must know whether this window existed there at the time of his purchase or not. He must know, or have wilfully stated what was false.

8. He says there was no window down to the reading of the Mahabarat, and that he then made the window.

9. He is not an independent witness like those on the other side. He had acted under the defendant with reference to this very building.

10. The next witness was Mohendro Nath Dass, the previous owner of No. 63. He swears to the making of the window before the time in question Mohendro Nath Das is a man very much mixed up with the defendant in business matters, and he cannot be called an independent witness.

11. The next is an important witness, Khoda Nawaz, the mistry. He swears he was employed to open the window. He is by no means an independent witness. He was under the direction of the first witness, Soorjee Coomar Bose, and employed by him and by the Seal family: and with regard to him it would take a very small slip of memory, or a very small perversion of fact, to mistake the enlargement of a window for the opening of a window He has no books, he depends on his memory, and he might, without any intention of making a false statement, represent the enlargement of the window as the opening of it.

12. Then Rakhaldas Chunder says,-he has known the plaintiff's house for a very considerable number of years, and has not known the window before. I do not value the evidence of such witnesses. People who have no interest might not notice these things. The same remark applies to Kali Kurmokar

13. The plaintiff's evidence is far more (sic)lable and free from suspicion than that of the defendant's witnesses. I the(sic)., it has been shown that there was an old window in this wall, which was (sic)arged at the Mahabarat reading.

14. I find in favour of the plaintiff on the first question, whether she has acquired a right to access of light through this window.

15. The second question has been settled by Mr. Bayne's evidence. There was some doubt on the point till lie was examined.

16. On Mr. Walker's evidence the matter was left in some doubt. He assumed that the wall rose from the ground. The plaintiff had better means of ascertaining, and she gave the same account as Mr. Bayne, though Soorjee Coomar said exactly the contrary. He said it was a wall built on foundations from the ground.

17. On the outer face of the north wall of the plaintiff's house, below the foot of the window in question, there was a string course projecting from the general surface of the wall. Mr. Bayne explained that the wall was made to rest on a beam, which was supported on one end on a back wall of the house No. 63, and on the other end by a pillar. The beam was on a level with this string course, and rested not in contact with, but above it, and in contact with the surface of the plaintiff's wall, and built so up to the top. That shows an encroachment, because the defendant had no right to build beyond the outside limit of the plaintiffs building. On Mr. Bayne's evidence and the other evidence it is shown, that there was on the top of the building a cornice projecting over and described to be 5 to 7 inches in width. From Mr. Bayne's account it is clear that, to the extent of that cornice, there has been an encroachment.

18. He stated, that if there be a cornice there has been an encroachment to the extent of that cornice.

19. The third question is, what is the remedy. The plaintiff, whose light has been obstructed, is entitled to a mandatory injunction, unless she has disentitled herself to the right.

20. With regard to the law, the question is set at rest by the judgment of the House of Lords in Tapling v. Jones (11 H. L. C., 290), and it is clear that if a man has a right to light from a certain window and opens a new window, the owner of an adjoining house has a right to obstruct the new opening if ho can do so without obstructing the old, but if he cannot obstruct the new without obstructing the old, he must submit to the burden.

21. This window was enlarged. It appears to me that the defendant acquired no right to obstruct that window for that reason-Staight v. Burn (L. R., 5 Chan., 163) and Ayusley v. Glover (L. R., 18 Eq., 544; S. C., or appeal, L. R., 10 Chan. App., 283). Therefore, unless some other circumstances are shown to deprive the plaintiff of her right to an injunction, it seems to me she is entitled to an injunction.

22. The only other ground to disentitle her is delay. It is right to see to the evidence on this point.

23. The evidence is that of Nobin Chand Bural, Shosheebhusun Chuckerbutty, and Trigonanath Mookerjee.

24. Nobin Chund Bural tells us that having received a communication from the husband of the plaintiff, he sa(sic) e premises, and sent first a private note and then a formal notice to the defendant. Assuming that Nobin Chund Bural used proper diligence, and there was (sic)o delay, was Nobin Chund Bural's notice in proper time? It must be remembered that it was not the building on the place in question that was wrong. The defendant had a right to raise his building as high as he liked, so as not to obstruct the light. No one could interfere untie it became apparent that the defendant was going to obstruct the light.

25. The work began on the 6th day of the poojah, and was finished the day after.

26. That is confirmed by the Sircar, who says, that the building of the wall took two or three days.

27. Then he says he was sent by the plaintiff's husband, who came on the last day.

28. Then Trigonanath Mookerjee was called. He is the plaintiff's husband. He went to the defendant's premises and found them locked, and the next day he went to the place and saw the mistress, and the same day went to Nobin Chand Bural. I am of opinion that the plaintiff and all who acted with her acted with all diligence.

29. The proceeding of the defendant was a very rapid one, and the plaintiff gave formal notice to the defendant in proper time.

30. There was some obscurity as to whether the notice had been received by the defendant. The witness Mohendro Nath Dass put that at rest, because he said, that he was told by the defendant himself that he had received a notice.

31. That the letter and notice were received by the defendant at the time is clear, for he has not chosen to go in to the box to deny it.

32. I find there was no delay on the part of the plaintiff' in taking steps to prevent the defendant from building his premises.

33. There was some conflict as to the state of the building at the time of the service of the notice. The Sircar says the walls were finished and the roof on, but that was impossible. The notice was given in a day or two after the wall was run up. It is impossible that in two days the roof could have been laid on and the floor completed.

34. I am quite satisfied that this wall and the other walls were completed, but that that was all.

35. I don't think, the plaintiff. I was guilty of any laches or carelessness. She gave notice as quickly as she could.

36. It appears to me that the plaintiff is entitled to the injunction she asks for, and that is an injunction requiring the defendant to remove so much of the building as obstructs the light of the window, and so much of the encroachment as interferes with the upper cornice of the plaintiff's house. Injunction to be, that defendant remove so much of his building a (sic) obstructs the light of the plaintiff's window or interferes with the upper (sic) of the plaintiff's house.


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