1. plaintiff in a suit for a mandatory injunction in respect of a construction of the first floor of the defendant's house is the appellant in the Letters Patent Appeal. The plaintiff pleaded that on the southern wall of the first floor there is a big window with a glass ventilator of about 6', that is 4' window with 3 doors and about a 2ft glass ventilator 4 1/2 ft. breadth opening into the tiled portion of the defendant's premises and four other ventilators of about 2 1/2 ft X 2 ft each on the southern side in the first floor of the said premises opening into the open terrace of the defendant's house. The relief was claimed on the ground that the defendant had, constructed a wall near the southern window with a glass ventilator which obstructed the free flow of air and light through the said window. The defendant denied that there was any obstruction to the facilities of light and air to which the plaintiff was entitled and therefore contended that the plaintiff was not entitled to any relief.
2. The trial Court found that there was an infringement of the plaintiff's right and granted a decree as prayed for. But the learned Principal Judge of the City Civil Court partly allowed the appeal of the defendant and granted a permanent injunction restraining' the defendant from raising any constructions in his first floor in a manner which would interfere with the plaintiff's easement rights to receive air and light through the four ventilators which were embedded in the plaintiff's southern wall and which were marked in the plan Exhibit B-3. He directed the defendant to pay the plaintiff a sum of Rs. 200- with interest at six per cent per annum from the date of suit till the date of payment, as damages for having blocked the window W-1 completely.
3. The matter was taken in Second Appeal by the plaintiff against the order refusing mandatory injunction so far as the construction of the window was concerned. The learned Judge after referring to the observation of the appellate court that inspite of the construction the plaintiff would get sufficient light in all reasons and that the other windows were sufficient for comfortable habitation of the bed-room, observed that most people would like to get breeze from the southern side and to put up windows on the southern wall for that purpose. The learned Judge held that the owner acquired a valuable easementary right and he was entitled to damages. Though the learned Judge found that the sum of Rs. 200. awarded as damages was low, he did not determine the quantum as he was granting leave to appeal.
4. The question that arises in this Letters Patent Appeal is whether the right of the plaintiff to light and air has been in any way infringed and whether he is entitled to the relief of injunction or damages. The position of the window and the quantity of light and air which the plaintiff is receiving at present can well be stated by quoting the following observations of the learned Principal Judge of the City Civil Court, who inspected the premises and made a report:
The window W.1 has. now been completely blocked and the appellant (defendant) had recently put up rooms south of the said window. The entire hall of which the bed-room forms a portion has got 7 big windows W. 2 to W.8 with Venetian shutters fitted to them for regulating air and light and their dimensions are set out in the plan Exhibit B-3. Windows W-2 to W-6 are in the bed-room and windows W.7 and W.8 are in the northern portion. The bed-room is completely shut off from the northern portion by a wooden portion and does not have the benefit of light and air through the windows W.7 and W.8 When I inspected the premises on 22nd January, 1964 at about 2-30 p. m. I found windows W.2 to W.6 completely closed. It is clear that if these windows remain completely closed there will not be sufficient light and air for the comfortable enjoyment of the bed-room. On my direction, windows W.2 to W.6 were opened completely and the room became bright with the light that radiated from the roadside on the east and the eastern breeze wafted very gently into the room. I am also of opinion that if the shutters are operated and left open, the bed-room will get sufficient light in all seasons and will get breeze after 2. p.m. in all seasons. During the southwest monsoon, however, no breeze will flow through the shutters and the respondent's) (plaintiff's) house has to depend solely on the southern breeze which will flow through W.1. But I am not prepared to say there would be physical discomfort in the enjoyment of the bed-room even during that period.
5. The above observations are not disputed in the appeal before us. The finding is that the obstruction to the southern window would not in any way interfere with the enjoyment of the bedroom of the plaintiff but that because the southern window had been blocked the plaintiff would be deprived of the breeze from the southern side which is considered very valuable, particularly in the city of Madras. On this finding, we will proceed to discuss the position of law.
6. The leading case on the point is Paul v. Robson (1915) I.L.R. 42 Cal. 46. After discussing the case law on the subject, the Privy Council approved the test formulated by Lord Davey which is as follows:
The owner of the dominant tenement is entitled to the uninterrupted access through this ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind....The single question in these cases is still what it was in the days of Lord Hardwicks and Lord Elden whether the obstruction complained of is a nuisance.
Summing up the position, their Lordships of the Privy Council have observed that the opinion of the Lord Chancellor in Colls case (1904) A.C. 179, is clear that the easement acquired by ancient lights is not measured by the amount of lights enjoyed during the period of prescription and that there is no infringement unless that which is done amounts to a nuisance. The Lord Chancellor has given his opinion thus:
The right of the owner or occupier of a dominant tenement to light is based upon the principle stated by Lord Hardwicke in Fishmonger's Company . East India Company (1752) 1 Dick 163, that he is not to be molested by what would be equivalent to a nuisance. He does not obtain by this easement a right to all the light he has enjoyed. He obtains a right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings. That is the basis on which the decision of this House proceeded.
7. The Privy Council held that the trial Court was right in applying the proper test as to whether or not there had been an infringement of the rights of the appellants. Therefore the position of law as expounded by the Privy Council is that a person does not obtain by his easement a right to all the light he as enjoyed, but that he obtains a right so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings.
8. We will consider whether the plaintiff is entitled to relief on the ground that he had been deprived of the breeze from the southern side which is considered to" be valuable, particularly in southern India. In Ammani Ammal v. Ranganayaki Ammal (1926) 51 M.L.J. 304 : (1926) M.W.N. 195 : 96 I.C. 94 : A.I.R. 1926 Mad 898, a Bench of this Court was considering the question whether the plaintiff, ought to be given a permanent injunction restraining the defendant from interfering with the right of easement to light and air through three windows on the southern wall and an aperture over the southern wall of the plaintiff's house. On the facts of the case, it was found that the windows were necessary for the convenient enjoyment of the plaintiff's house. In fact, it was not disputed that for the convenient enjoyment of the plaintiff's house, the wirdows were necessary. On the ground that if the windows were blocked up the plaintiff's house would- become almost uninhabitable and the aperture over the court-yard was necessary for the purpose of light and air coming into the plaintiff's kudam, it was held that the existence of windows and openings on the southern wall of a house was necessary for the comfort of the inhabitants of the house as the southern breeze was very much valued in this part of the country and an injunction was granted as prayed for. As already pointed out, in this case, it is not disputed that the windows are necessary for the convenient enjoyment of the plaintiff's house. On that ground the plaintiff would be entitled to a mandatory injunction. The learned Counsel for the appellant-plaintiff stresses the fact that the Bench in the above case has observed that the southern breeze is very much valued in this part of the country and therefore, the appellant is entitled to some relief to the extent that he has been deprived of the southern breeze. In Sithapathi Maidu alias Sitaram and Anr. v. Rathinammal and Anr. (1967) 80 L.W. (S.N.) 16, Srinivasan, J., granted an order of injunction in favour of the plaintiff on the ground that the amenity of breeze from the south which is considered to be of great importance and which the plaintiff had been enjoying for over thirty years has been completely shut off by the offending constructions.
9. In Sofia Bi Bi Saheba v. Vasudeva Chetty (1940) 2 M.L.J. 381 : 52 L.W. 383 : 191 I.C. 832 : A.I.R. 1940 Mad. 952, Somayya, J., found that the plaintiff's windows were in existence for over the statutory period and that obstruction was caused to one of them by the defendants raising a wall. It was also found that the plaintiff was receiving sufficient light and air from other sources. In a suit for a mandatory injunction the Court held that the closing of the window constituted an invasion of the plaintiff's easement and though the defendant's action did not cause actual damage to the plaintiff, the plaintiff had a right of action against the defendants as the act affected the evidence of easement and that the plaintiff was entitled to Rs. 150 as damages. The learned Judge accepted the finding of the trial Court that there was no diminution of light and air as to amount to a nuisance, that the plaintiff received sufficient light and air from other sources and that the plaintiff could not succeed as there was no substantial damage. The learned Judge referring to Section 33 Explanations I and II of the Indian Easements Act observed that Explanation II says that in respect of an easement of light, damage is substantial if it falls within Explanation I which provides that the doing of any act likely to injure by affecting the evidence of easement is substantial damage and that the principle underlying Explanation I is that any act of the defendant which affects the evidence of easement is enough to sustain an action though the plaintiff does not suffer actual damage. The learned Judge quoted the following observations of Jones in Law of Easements at page 701:
Damages are presumed to have resulted from the violation of the right. The disturbance of the easement is in derogation of the title of the dominant owner; and although he has suffered no actual injury he may maintain action to vindicate his title and have a judgment for nominal damages.
The view of the learned Judge that even though there is no substantial damage, the dominant owner can maintain an action on the ground that there was an invasion of the plaintiff's easement is questioned. Section 33 of the Indian Easements Act, 1882, runs as follows:
The owner of any interest in the dominant heritage or the occupier of such heritage may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to-the plaintiff.
Explanation I.--The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this, section and Section 4.
Explanation II.--'Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the First Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Explanation III.--Where the easement disturbed is a right to the free passage of air to the openings in a house, no damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff though it is not injurious to his health.
10. According to the section, a suit for compensation may be instituted for the disturbance of the easement provided that the disturbance has actually cruised substantial damage to the plaintiff. Therefore, the causing of substantial damage is necessary before a suit for compensation could be maintained, What is substantial damage is explained in Explanations I to III. Explanation I provides that when an act is likely to injure the plaintiff by affecting the evidence of the easement or by materially diminishing the value of the dominant heritage, the damage is substantial The present case cannot be brought under Explanation I as there is no attempt to affect the evidence of the easement. Explanation II relates to the disturbance of easement to free passage of light passing to the openings in a house. It is stated that no damage is substantial unless it interferes materially with the physical comfort of the plaintiff or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. So far as light is concerned, we find that the obstruction complained of does not interfere- materially with the physical comfort of the plaintiff or prevent him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. Regarding the right to free passage of air to the openings in a house. Explanation III provides that the damage is substantial if it interferes materially with the physical comfort of the plaintiff though it is not injurious to his health. The plaintiff will be entitled to relief on the ground of substantial damage if the physical comfort of the plaintiff is materially interfered with. It is not necessary for the plaintiff to prove that such interference is injurious to the health. The only point regarding the right to free passage of air is whether the plaintiff's physical comfort has been materially interfered with. In English law, regarding the right to light, the position has been laid down in Coil's case (1904) A.C. 179 which is cited with approval in Paul v. Robson (1915) I.L.R. 42 Cal. 46 (P.C.), that the easement acquired by ancient lights is not measured by the amount of light enjoyed during the period of prescription and that there is no infringement unless that which is done amounts to a nuisance. Regarding the right to free passage of air what is required is proof of material interference with the physical comfort of the plaintiff. Proof of actual injury to the health is not necessary and nuisance need not strictly be proved as all that is necessary on the part of the plaintiff is to prove that his physical comfort has been materially interfered with, though this may or may not amount to a nuisance. It may be noted in this connection that the learned Judge has found that the southern window had been blocked and that the plaintiff would be deprived of the breeze from the southern side which is very valuable during the south-west monsoon, that no breeze will flow through the shutters and that the plaintiff's house has to depend solely on the southern breeze which will flow through W. 1 which has been closed. This view is sufficient to hold that the plaintiff's physical comfort has been materially interfered with.
11. We agree with the contention of the learned Counsel for the defendants that the plaintiff is not entitled to a claim for damage under Section 33 of the Act unless there is proof of substantial damage caused to the plaintiff. The section does not enable any relief on the ground of infringement or violation of the plaintiff's right which does not amount to substantial damage.
12. In the circumstances of the case' we agree with the contention of the learned Counsel for the plaintiff that the closing of the southern window has interfered materially with the physical comfort of the plaintiff and as such he is entitled to damages. But, we have already stated that though the flow of the air from the southern side is interfered with during a particular season, the house has enough of light and air which would enable him to carry on his accustomed business. In the circumstances, though we agree with the learned Counsel for the plaintiff that there has been substantial damage, we do not think that the grant of substantial compensation or mandatory injunction is called for. Every infringement of right which results in substantial damage would not entitle the plaintiff to a mandatory injunction in his favour. Section 35 of the Indian Easements Act provides that an injunction may be granted to restrain the disturbance of an easement subject to the provisions of the Specific Relief Act. An order of injunction is usually not granted when the invasion complained of could be compensated in money.
13. Grant of mandatory injunction is a discretionary relief and that discretion has got to be exercised judiciously. While exercising the discretion, the court is entitled to consider the balance of convenience, the question whether the injury inflicted is so irreparable that only a mandatory injunction cam remedy he mischief and not the compensatory relief of damages. In this case, there are five east facing windows in the plaintiff's room and sufficient light and air can pass through the same even after the blocking of the south-facing window. Further, the ventilators on the southern wall are still left intact as a result of the restrictive injunction granted by the first appellate Court. In these circumstances, we think it right to refuse to grant a mandatory injunction and we award relief by fixing damages at Rs. 1,000. The plaintiff will be entitled to his costs throughout.