Smt. Bhulwati Devi And Another v. Munna Lal ., Allahabad High Court, Judgment, Law, casemine.com

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Case Number

Second Appeal No. 244 of 1975*

Attorney(S)

K. N. Upadhya
H. S. Joshi

Judges

A.V Varma, J.

Acts

provisions of Ss. 33 and 35 of the Easements Act
Ss. 28, 33 and 35 of the Easements Act,

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Smart Summary

Factual and Procedural Background

This second appeal and a cross-objection arise out of the same suit. The trial court decreed the suit in full in favour of the plaintiff-respondent. On first appeal the appellate court modified the decree: it affirmed the trial court's decree for removal of constructions complained of by the plaintiff-respondent, but set aside the decree insofar as it related to the claim for a parnala (a right to flow water) and dismissed that part of the plaintiff's suit. The defendants (now appellants before this court) challenged the appellate court's decree by filing this second appeal. The plaintiff-respondent filed a cross-objection against the dismissal of their parnala claim.

Facts as pleaded by the plaintiff-respondent: they alleged existence of five ventilators (four on the ground floor and one in an upper storey, later disputed) in the western wall of their house through which they had enjoyed uninterrupted passage of light and air for over 50 years. They alleged that the defendants' construction towards the west would obstruct this passage of light and air and also interfere with a claimed easementary right to flow water (parnala) towards the defendants' house.

Defences by the defendants included denials of the existence of the ventilators, denial of any prescriptive right to flow water towards defendants' house, assertion that defendant No.1 had rebuilt on the site of an old kuchcha wall adjacent to the plaintiff's western wall, and a plea of estoppel. Issues were framed in the trial court. The trial court answered all material issues in favour of the plaintiff-respondent and decreed the suit in full.

On appeal, the appellate court affirmed the plaintiffs' right to receive light and air through certain ventilators (found to be four on the ground floor and one on the first floor) and issued a mandatory injunction to protect that right, while dismissing the plaintiffs' claim in respect of the parnala. The present judgment examines the legality of issuing the injunctions without addressing whether the plaintiffs suffered substantial prejudice or inconvenience from any diminution of light or air.

Legal Issues Presented

Whether a mandatory (or perpetual) injunction can be granted to protect an alleged right to receive light and air through ventilators without the plaintiff proving a substantial diminution of light or air that renders the occupation and use of the house inconvenient or uncomfortable (i.e., whether mere diminution in physical quantity suffices).
Whether the plaintiff-respondents had established a prescriptive easement (parnala) to flow water towards the defendants' house (this issue was considered on the evidence by the lower appellate court and is before this court for review of that finding).
Determination of the number of ventilators through which the plaintiffs had acquired the right to receive light and air (the appellate court found four on the ground floor and one on the first floor; the correctness of that factual finding was under consideration).

Arguments of the Parties

Appellant's Arguments (Defendants)

The courts below committed a patent error of law and jurisdiction by granting a mandatory injunction without addressing whether the plaintiff-respondents suffered any substantial prejudice or injury as a consequence of the defendants' construction.
Mere proof that the quantity of light or air had been reduced (i.e., less than previously enjoyed) was insufficient; to obtain an injunction the plaintiffs must prove substantial diminution sufficient to render occupation or use of the house inconvenient or uncomfortable.
The lower courts failed to inquire into or make findings on whether such substantial deprivation had occurred.

Respondent's Arguments (Plaintiff-Respondents)

The respondent (as reflected in submissions recorded) urged that the view of this court in earlier decisions should be reconsidered because it allegedly overlooked the effect of clause of Section 28 of the Easements Act. (The court recorded that it could not be persuaded by this submission.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1973 All WR (HC) 173 (Ram Narayan Ram v. Ram Dhani Ram)	Establishes that under Ss. 28, 33 and 35 of the Easements Act plaintiff must show substantial injury or deprivation of light/air sufficient to render occupation uncomfortable before injunction will be granted.	The court relied on this decision as part of a line of authority supporting the proposition that mere diminution of light/air is insufficient; it affirmed that injunctions should not have been granted without proof of substantial interference.
AIR 1929 All 430 (Suraj Narain v. Kalyan Das)	Affirms the requirement that plaintiffs must show substantial interference with comfort/occupation, not merely reduction in physical quantity of light/air.	The court cited this case as supporting the settled view that substantial deprivation must be shown before an injunction is appropriate.
AIR 1933 All 493 (Shambhu Prasad v. Mahadeo Prasad)	Considers the effect of Section 28 and holds that Sections 28, 33 and 35 read together indicate that injunctions require proof of substantial interference with physical comfort.	The court expressly relied on the Division Bench's reasoning that S.28 cannot be read in isolation and that a combined reading of Ss.28, 33 and 35 requires proof of substantial interference; the court found itself in agreement with that view.
(1971) 2 SCC 205 : AIR 1971 SC 1878 (Chapsi Bhai Dhanji Bhai Dand v. Purushottam)	Supreme Court pronouncements (paras 19, 22 and 23) reinforcing that substantial deprivation of comfort must be shown under the Easements Act before equitable relief such as injunction is granted.	The court held that the Supreme Court pronouncements put the issue beyond controversy and supported the conclusion that the lower courts erred in granting injunctions without regard to substantial injury.

Court's Reasoning and Analysis

The court conducted a twofold analysis: (A) review of factual findings of the lower appellate court and (B) review of the legal basis for granting mandatory and perpetual injunctions in respect of obstruction of light and air.

A. Factual findings reviewed and affirmed

The court found the lower appellate court's determination as to the number of ventilators through which the plaintiffs had acquired the right to receive light and air (four on the ground floor and one on the first floor) to be correct and not open to interference on remand.
The lower appellate court's finding that the plaintiff-respondent had failed to prove the existence of any parnala or presumptive easementary right to flow water towards the defendants' house was also found to be unexceptionable and was affirmed. The plaintiff's cross-objection against that finding was dismissed.

B. Legal analysis on injunctions and requisite proof of substantial injury

The central legal point examined was whether the courts below erred in issuing mandatory and perpetual injunctions without determining whether there was substantial prejudice or injury (i.e., substantial diminution of light/air) rendering occupation and use of the house inconvenient or uncomfortable.
The court examined Sections 28, 33 and 35 of the Easements Act and the line of authority cited by counsel. It concluded that the cited cases (including the Division Bench decision in Shambhu Prasad and the Supreme Court decision in Chapsi Bhai Dhanji Bhai Dand) uniformly hold that mere reduction in physical quantity of light or air is insufficient; the plaintiff must prove substantial interference with physical comfort according to ordinary requirements of mankind.
The court rejected the respondent's submission that the earlier view required reconsideration on account of Section 28. Instead, it agreed with the approach that Sections 28, 33 and 35 must be read together and that injunctions should only issue upon satisfaction that there has been substantial interference with physical comfort.
Applying that legal principle to the present case, the court found that both courts below had issued injunctions "as a matter of course" upon merely finding that the plaintiffs had received light and air through the ventilators for a length of time. The courts had not made any enquiry or finding as to whether there had been substantial deprivation rendering occupation inconvenient. That omission constituted a patent error of law and jurisdiction.
Accordingly, while upholding the lower appellate court's factual findings on ventilators and parnala, the court held that the injunctions based on those findings were legally unsustainable because the crucial question of substantial injury had not been addressed.

Holding and Implications

Holding: The second appeal is allowed and the cross-objection is dismissed. The judgments and decrees passed by the courts below insofar as they granted mandatory and perpetual injunctions in respect of the plaintiffs' claimed right to receive light and air through the ventilators are set aside. The suit is remanded to the trial court for disposal according to law, having regard to the observations in this judgment. The parties shall bear their own costs (including costs of the cross-objection).

Implications:

Direct effect on the parties: The injunctions previously granted by the courts below in respect of the ventilators are vacated and the matter is remitted to the trial court to determine, following proper enquiry and evidence, whether the plaintiffs have suffered substantial injury or inconvenience as a result of the defendants' construction.
The trial court is expressly permitted to allow the parties to lead fresh evidence on the specific issue of whether the plaintiff has suffered substantial injury or inconvenience due to the constructions; any such fresh evidence must, however, be within the specific cases pleaded by the parties.
The judgment reaffirms settled law under Ss. 28, 33 and 35 of the Easements Act (as interpreted in the cited authorities) that an actionable obstruction of light and air requires proof of substantial diminution affecting comfort — mere diminution in quantity of light/air is not sufficient to warrant an injunction. The court treated the line of preceding decisions as authoritative and did not depart from them; thus the decision reasserts, rather than alters, existing precedent.

Final disposition recorded in the opinion: "Appeal allowed." Parties to bear own costs; cross-objection dismissed; remand for fresh consideration limited to pleaded issues.

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Smt. Bhulwati Devi And Another v. Munna Lal .

1. This second appeal and the cross-objection filed therein are being disposed of by a common judgment as they arise out of the same suit. The suit was decreed by the trial court in its entirety. On appeal, the decree of the trial court was modified. Whereas the decree of the trial court for removal of constructions complained of by the plaintiff-respondent was affirmed, the decree of the trial court in respect of the parnala was set aside and the plaintiff-respondent's suit in that regard was dismissed. Aggrieved by the decree passed by the lower appellate court, the defendants have filed this second appeal. The plaintiff-respondent on the other hand, has filed cross-objection against the dismissal of their claim in respect of parnala.

2. The plaintiff-respondents came to the court with the allegations that they have five ventilators on the ground floor of their house in their western wall. Through these ventilators, the plaintiffs were enjoying uninterrupted passage of light and air into their residence for more than 50 years. The defendants are constructing their house towards the west and if they were permitted to complete the constructions as planned by them free passage of the light and air into the house of the plaintiff-respondent shall have been completely blocked. The plaintiff has also prescribed an easementary right of flow of water towards the house of the defendants. However, the house which the defendants are constructing, if allowed to be completed is bound to interfere with the right of the plaintiffs to flow water from their house. In paragraph 7 of the plaint, it was alleged that if the defendants were allowed to complete their constructions, they would deprive the plaintiffs of enjoyment of the air and light and there would be consequent darkness in the room of the plaintiff's house. The defence of the defendant No. 1 was that there did not exist any ventilators on the ground floors or in the upper storey in the western wall of the plaintiff's house. It was asserted that the defendant No. 1 had constructed the wall at the site of their old Kuchcha wall which was always just adjacent to the western wall of the plaintiff's. The said defendants also denied the existence of any rights claimed by the plaintiffs to flow water from their house towards the defendants' house. A plea of estoppel was also raised in the written statement.

3. The defendant No. 2 also filed a separate written statement and raised pleas similar to those raised by the defendant No. 1.

4. On the pleadings of the parties issues were framed by the trial court.

5. All the material issues were answered against the defendants-appellant and in favour of the plaintiff-respondent. With the result that the suit of the plaintiff-respondent was decreed in toto.

6. Aggrieved by the decree passed by the trial court, the defendants filed an appeal which was partly allowed. The decree of the trial court in regard to right claimed by the plaintiffs to receive light and air through four ventilators on the ground floor and one on the upper storey was affirmed. A mandatory injunction was issued by the lower appellate court to protect that right of the plaintiffs. In regard to the easement claimed by the plaintiff-respondents to flow water from their house towards the house of the defendants, the lower appellate court held against plaintiff-respondents and dismissed their suit for that relief. The lower appellate court took the view upon evidence that the plaintiff had only four ventilators on the ground floor and one on the first floor through which they could be said to have acquired the right to receive light and air. In regard to the remaining ventilators the claim of the plaintiff-respondent was negatived.

7. So far as the question as to the number of ventilators through which the plaintiffs could be said to have been enjoying the right to receive light and air is concerned, the finding of the lower appellate court appears to be correct and calls for no interference. The said finding is affirmed and shall not be open to review upon remand of the case to the trial court which I am proposing to do. Similarly, the finding of the lower appellate court that the plaintiff-respondent has failed to prove the existence of any parnala towards the house of the defendants or that he has prescribed an easementary right to flow water of his house towards the defendants's house also seems to be entirely unexceptionable. Learned counsel for the plaintiff-respondent was unable to satisfy me that the said finding suffers from any error of law. That finding is, therefore, also affirmed and shall not be open to review. The cross-objection filed by the plaintiff-respondents is, therefore, liable to be dismissed.

8. Now, I turn to the main question which was debated in the second appeal. Learned counsel for the appellant vehemently contended that both the courts below have committed a patent error of law and jurisdiction in granting a decree for mandatory injunction to the plaintiff-respondent in regard to their alleged right to receive light and air through the ventilators in question without addressing themselves to an important issue namely whether or not the plaintiff-respondent suffered any substantial prejudice or injury by the acts complained of by the plaintiff-respondent in consequence of the construction of the building of the defendant-appellants. It was submitted that in order to constitute an actionable obstruction of free passage of light or air through the ventilators in question into the house of the plaintiff, it was not enough to allege or prove that the quantity of light or air which was previously being received by the plaintiff-respondent had been reduced or that the same is less than that enjoyed earlier. In order to be able to claim a mandatory injunction, it was submitted, it was essential for the plaintiff-respondent to prove that there has been substantial diminution of light or air sufficient to render the occupation and use of his house inconvenient or uncomfortable. Neither of the two courts below has made any attempt to find out whether there has been such substantial deprivation or obstruction resulting in substantial injury to the plaintiff-respondent.

9. In support of the aforesaid contention, learned counsel placed reliance on three decisions of this court and one of the Supreme Court. These are respectively 1973 All WR (HC) 173, (Ram Narayan Ram v. Ram Dhani Ram), AIR 1929 All 430, (Suraj Narain v. Kalyan Das), AIR 1933 All 493, (Shambhu Prasad v. Mahadeo Prasad) and (1971) 2 SCC 205 : AIR 1971 SC 1878 Paras 19, 22 and 23 (Chapsi Bhai Dhanji Bhai Dand v. Purushottam).

10. Having heard learned counsel for the parties at some length on the above controversy, I find that the contentions raised by the learned counsel for the defendant-appellants is fully supported by the aforesaid decisions. The view of this court on this controversy appears to be unanimous. On an analysis of Ss. 28, 33 and 35 of the Easements Act, this court has clearly held in all the aforesaid cases that the plaintiff must establish a substantial injury or deprivation of his right sufficient to render the use and occupation of his house inconvenient or uncomfortable according to the ordinary requirements of mankind. These cases do lay down in clear terms that it is not enough to allege and prove that there has been a reduction in the quantum of air and light in the physical sense by the acts complained of by the plaintiffs. The plaintiff must further prove that the curtailment of right has been so substantial as to render a comfortable living or use of the residence of course judged by ordinary notions, impossible.

11. There is no manner of doubt that both the courts below have issued the injunction as a matter of course without calling their attention to this vital aspect of the case. They have issued the injunction on a mere finding that the plaintiff-respondent has been receiving light and air through the ventilators for a certain length of time. This was clearly insufficient to entitle the plaintiff-respondent to a decree for injunction, in view of the provisions of Ss. 33 and 35 of the Easements Act as interpreted by this court in the aforesaid decisions.

12. Learned counsel for the respondent submitted that the view taken by this court in the aforesaid decisions requires reconsideration as it seems to have overlooked the impact of clause of S. 28. I cannot agree. In the case reported in AIR 1933 All 493, Shambhu Prasad v. Mahadeo Prasad, the Division Bench did notice the effect of S. 28. However, the Division Bench observed that S. 28 could not be read in isolation and that if Ss. 28, 33 and 35 were read together, it was clear that the intention was that an injunction could be issued only upon the plaintiff's satisfying the court that there had been substantial interference with his physical comfort. I find myself in complete agreement, with respect, with the view expressed in each one of these decisions. In any case, the pronouncement of the Supreme Court in the case reported in (1971) 2 SCC 205 : AIR 1971 SC 1878 paragraphs 19, 22 and 23 puts the issue beyond any controversy.

13. The courts below have in any opinion, committed a patent error of law and jurisdiction in granting a decree for mandatory injunction as well as perpetual injunction against the defendant-appellant in regard to the right claimed by the plaintiff-respondent to receive light and air through the ventilators in question without having regard to the aforesaid settled legal position. The decrees passed by the court below are therefore, liable to be set aside subject to the affirmance of the findings of the lower appellate court mentioned above.

14. For the reasons stated above, whereas the cross-objection fails and is dismissed, the second appeal succeeds and is allowed. The judgments and decrees passed by the courts below are set aside. The suit is remanded to the trial court for being disposed of according to law, having regard to the observations made in this judgment. The parties shall bear their own costs of this court as well as of the courts below. The parties shall also bear their own costs of the cross-objection.

15. The trial court may also permit the parties to lead fresh evidence on the issue mentioned above, namely, whether the plaintiff has suffered any substantial injury or inconvenience as a result of the constructions of the defendants.

16. The fresh evidence shall, of course, have to be within the specific cases pleaded by the parties.

17. Appeal allowed.

Smt. Bhulwati Devi And Another v. Munna Lal .

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Defendants)

Respondent's Arguments (Plaintiff-Respondents)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Bhulwati Devi And Another v. Munna Lal .

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