1. This is an appeal on behalf of the defendants from that part of the judgment of the learned Additional Subordinate Judge by which he has affirmed the finding of the learned trial Judge, restraining the defendant-appellants from building their house more than seventeen feet high or in such a way as to obstruct in any way the passage of air or light to the plaintiffs in the second storey of their house. The only point taken in the present appeal by Mr. R.S Chatterji, on behalf of the appellants, was that as there is a compound wall between the house of the plaintiffs, standing on plot 1390, and, the house constructed by the defendants on plots 1389, 1387 and a portion of plot 1386, it cannot be said that by construction of the defendants' house, the plaintiffs will not get so much of the use of access of light or air over the defendants' premises as is reasonably necessary for the comfortable habitation of their premises.
2. It is necessary to state some relevant facts for the decision of the point raised in this Court.
3. In 1922 the plaintiffs purchased plot 1390 in suit, as also plot 1391 and a portion of plot 1392. The defendants purchased, between 1946 to 1949, plots 1387 and 1389, which are in suit, and, some other plots, with which we are not concerned in the present appeal. Admittedly the house of the plaintiffs stands on plot 1390 and the defendants are constructing their new house on plots 1389, 1387 and a portion of plot 1386.
4. According to the plaintiffs, they had acquired a right of easement by prescription to get uninterrupted use of light and air through their windows in the northern block of the second storey of their house standing on plot 1390, through the defendants' plots 1387 and 1389, by having enjoyed the same for more than twenty years. This led to the controversy as to when the plaintiffs' house was constructed. According to the plaintiffs, it was constructed long before twenty years, but, according to the defendants, it was constructed only about ten years back. On this question, the concurrent finding, which has not been challenged, of both the courts below is that the plaintiffs' house was constructed twenty-five years ago.
5. In that view, therefore, both the courts below also concurrently found, which has also not been challenged, that the plaintiffs had acquired the right of easement for use of unobstructed light and air in the second storey of their house 17 feet high from plots 1387 and 1389 through their northern windows by prescription. The learned Judge of the court below, however, after having found that, has consequently restrained the defendants from building their house more than seventeen feet high or in such a way as to obstruct in any way the passage of air or light to the plaintiffs.
6. The learned Additional Subordinate Judge also found, in agreement with the trial Judge, that it is unrefuted that there is a compound wall to the north of the house of the plaintiffs', and that this “boundary wall was constructed much subsequent to the construction of the plaintiff's house.” Relying on this finding Mr. Chatterji put forward his argument stated earlier.
7. In this connection Mr. Chatterji relied on a Bench decision of the Calcutta High Court in Sarojini Devi v. Krista Lal Haidar, 36 Cal LJ 406 : (AIR 1923 Cal 256); and on the decision of a learned I Single Judge, Trevelyan, J., of the same Court in Delhi and London Bank Ltd. v. Ram Lall Dutt, ILR 14 Cal 839 and also on a decision of the Privy I Council in Paul v. Robson, ILR 42 Cal 46 : (AIR 1914 PC 45). On the basis of the above decisions Mr. Chatterji contended that if the defendants' building would have been parallel to and at the sidle of the building of the plaintiffs, leaving no space whatsoever between them, then certainly the plaintiffs' light and air would have been closed up by the high building of the defendants at the sides, but here, so ran his argument, there is no circumstance of that kind.
8. In the present case, Mr. Chatterji contended, on the concurrent findings of the courts below, admittedly there is a compound wall towards the north of the plaintiffs' house in ‘between the plaintiffs’ house standing on plot 1390 and the defendants' house standing on plots 1389 and 1387, and a portion of 1386, and, therefore, it cannot be said that the plaintiffs' light and air would be completely closed up, if the defendants' building goes up higher than seventeen feet.
9. Mr. Mani Lall, who appeared for the plaintiffs-respondents, met the above argument by contending first, that there was no foundation for the assumption that there was a compound wall north of the plaintiffs' house in between the plaintiffs' plot 1390 and the defendants' plots 1389 and 1387, in that, the compound wall was on plot 1386, and, secondly, that this question was not raised in the written statement nor put into the issue before any of the two courts below, and, as such, the appellants H were not entitled to rely on the finding about the I existence of a compound wall in support of their I new case now made out in this Court, and, put forward a new case at this appellate stage.
10. It is true that this question now raised was not specifically raised in the form in which it is urged now, and, for that reason there is no definite finding by any of the two courts below on this particular question. It appears to me, however, that when it is admitted that the plaintiffs' building stands on plot 1390 and the defendants' building 11 stands on plots 1389, 1387 and a portion of plot 1386, and further that there is a compound wall north of the plaintiffs' house standing on plot 1390, naturally question arises as to whether, in these circumstances, there is any space left between the two H buildings, and if there is some space, whether the plaintiffs will obtain so much light and air 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.
11. In these circumstances, I do not think it is making out a new case. Admittedly, and, as also found by both the courts below, there is a compound wall north of the house of the plaintiffs. The only controversy in this Court is that, according to the plaintiffs, this boundary wall north of the plaintiffs' house is in between plot 1390 belonging to the plaintiffs and plots 1389 and 1387, belonging to the defendants, whereas, according to the defendants, it exists on plot 1386. If it exists as and where alleged by the plaintiffs then certainly they can rely on their legal rights arising; on the situation of the compound wall north of their house, and, then the only question would be what should be the legal inference from this admitted existence of the compound wall north of the plaintiffs' house.
12. The question then is what is the law on the point, and, what is the proper view of the legal rights of the plaintiffs, if it be assumed that the compound wall exists between the two buildings, as alleged by the plaintiffs north of the plaintiffs' building on plot 1390, and south of the building of the defendants standing on plots 1389 and 1387?
13. In Sarojini Devi's case, 36 Cal LJ 406 : (AIR 1923 Cal 256) Sir Ashutosh Mookerjee, J., who delivered the joint judgment of the Court, at pages 408-409 (of Cal LJ): (at p. 258 of AIR), after considering the English decisions, referred to therein, summarised the principles applicable to cases of this character in these words:
“To put the matter briefly, every one may build upon or otherwise utilise his own land, regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and building of another person. On the other hand, every man may open any number, of windows looking over his neighbour's land, for the interference with a neighbours privacy or with his prospect, does not, by itself, give the latter a cause of action, in the absence of other circumstaces. If windows are so opened, the neighbour may, by building on his own land, obstruct the light which would otherwise reach them. The problem, therefore, which really arises in this case is whether the first defendant has acquired the right to use unobstructed the doors and windows”.
14. In the present case on the undisputed concurrent findings of the courts below, the plaintiffs have acquired such a right by prescription, by lapse of the statutory period since the date of their purchase.
15. In the just mentioned case, while observing that care should be taken to avoid obstructing ancient lights, by the erection of a wall or other obstacle, in the circumstances mentioned therein, Mookerjee, J. further observed, at page 408 (of Cal LJ): (at p. 258 of AIR), as below:
“….it may be useful to point out, as was done by Lord Westbury in Tapling v. Jones, (1865) 11 H.L.C 290 at p. 305, that the expression ‘right to obstruct’ has a tendency to mislead. ‘If my adjoining neighbour builds upon his land and opens numerous windows, which look over my gardens or pleasure grounds, I do not acquire from this act of my neighbour any new or other right than I before possessed. I have simply the same right of building or raising any erection I please on my own land, unless that right has been, by some antecedent matter, either lost or impaired, and I gain no new or enlarged right by the act of my neighbour. The erection of a wall or other obstacle is, indeed, the only remedy available to a landowner, if he is annoyed by the opening of new windows overlooking his ground; he can maintain no action nor can he obtain other relief at law or in equity; in building to obstruct new windows, however, he must be careful to avoid obstructing ancient lights.”
16. In the instance case, however, the erection of the building by the defendants by the side of the plaintiffs' building towards its north will not be unlawful if it does not close down completely the windows of the plaintiffs, or, obstruct their ancient lights and air which would be the case if there is a compound wall intervening between the two buildings.
17. Mr. Chatterji relied on the decision of Trevelyan, J. in ILR 14 Cal 839 and submitted that A “45 degree rule” should be applied to the present case. But, as held in this very case, this is not a positive rule of law, it is a circumstance which the court may take into consideration; and is especially valuable when the proof of the obstruction is not definite or satisfactory. In this connection his Lordship, at page 858, observed:
“There is no doubt here that 45 degrees of sky are unobstructed. In Beadel v. Perry, (1866) 3 Eq 465 which was, as far as I know, the first case in which what is known as the 45-degree rule was enunciated, the Vice-Chancellor, Sir John Stuart, says this: ‘It seems to me that where, opposite to ancient lights, a wall is built not higher than the distance between that wall and the ancient lights, there cannot, under ordinary circumstances, be such a material obstruction of the ancient lights as to make it necessary for this Court to interfere by way of injunction’.
This is, it is true, not a positive rule of law, but it is a circumstance which the Court may take into consideration, and is especially valuable when the proof of the obscuration is not definite or satisfactory. Of course where lights are closed up by high buildings at the sides, this rule may not be applicable but here there is no circumstance of that kind.”
18. It is clear, therefore, that as to the angle of 45° there is no such rule or law; each case must depend on its own circumstances. The 45° rule in London was a sufficient and fair basis to act on; the rule has only been adopted from the statute; it does not follow that the same basis is suitable for India.
19. What rights to light and air are have been clearly laid down in J.G Bagram v. Khettranath Karformah, 3 Beng LR OC 18 at p. 45 which was relied upon by Trevelyan, J. in the above-mentioned case.
20. The right to air was, as Mr. Justice Norman put it in the above Bagram's case, 3 Beng L.R OC 45
“To give a right of action (in a case where there is no express contract on the subject) for an interference with the access of air to dwelling houses by building on adjoining land, the obstruction must be such as to cause what is technically called a nuisance to the house; in other words, to render the house unfit for the ordinary purposes of habitation or business.”
21. The right to light is, as put by Sir Barnes Peacock in Bagram's case, 3 Beng LR OC 45, as follows:
“But the only amount of light for a dwelling house which in my opinion can be claimed by prescription, or by length of enjoyment without an actual grant, is such an amount as is reasonably necessary for the convenient and comfortable habitation of the house.
22. It is manifest, therefore, that the right of air is co-extensive with the right to light. The only amount of light for a dwelling house which can be claimed by prescription or by length of time, whether prior or subsequently to the Limitation Act, without an actual grant, is such an amount as is reasonably necessary for the convenient and comfortable habitation of the house. To give a right of action, either prior or subsequently to the Limitation Act, in a case, where there is no express contract on the subject, for an interference with the access of air to dwelling houses by building on adjoining land, the obstruction must be such as to cause what is technically called a nuisance to the house; in other words the house thereby becomes unfit for the ordinary purposes of habitation or business.
23. The above view was also taken subsequently by the Privy Council, and the law on the subject is firmly established by the decision of the Privy Council in ILR 42 Cal 46 : 41 Ind App 180 : (AIR 1914 PC 45).
24. The legal test in such an action was formulated by Lord Davey, in Colls v. Home and Colonial Stores Ltd., (1904) A.C 179, decided by the House of Lords, in the following words:
“The owner…….. of the dominant tenement is entitled to the uninterrupted access through his 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 Hardware and Lord Eldon whether the obstruction complained of is a nuisance?”
25. Jolly v. Kine, (1907) A.C 1 has further established that the law as formulated above by Lord Davey in Coll's case, 1904 AC 179 is the law laid down by that decision. The above rule laid down by Lord Davey was adopted by Lord Moulton, who delivered the opinion of the Judicial Committee of the Privy Council, in Paul's case, ILR 42 Cal 46 : (AIR 1914 PC 45) (supra).
26. The principle, therefore, which can be extracted from the above authorities, is that easement acquired by ancient lights or air is not measured by the amount of light or air enjoyed during the period of prescription. The owner of the dominant tenement obtains a right to so much of it as will suffice for the ordinary purposes of inhabibaney or business according to the ordinary notions of mankind, having regard to the locality and surroundings. He does not obtain by his easement a right to all the light or air which he has enjoyed. There is no infringement of the right, unless what is done amounts to a nuisance.
27. In other words, the right of the owner or occupier of a dominant tenement to light or air is not to be molested by what would be equivalent to a nuisance. There must, therefore, be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action, and, that as long as he receives through the windows of his dwelling-house, or in the case of a particular on in his dwelling-house, through the windows of that room, an amount of light or air, which is sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling house, or of the room in it, as the case may be, no nuisance has as regards him been created, and, no legal wrong has been inflicted upon him.
28. Tested in the above light, it is necessary, therefore, to remand the case to the trial court (as the exact location of the, compound wall is not clear), for determination of the following two questions:
(1) If the admitted boundary wall towards the north of the plaintiffs' building standing on plot 1390 is south of the defendants' building standing on plots 1-389 and 1387 and in between the two buildings leaving a space between them, as alleged by the plaintiffs, or, it stands on plot 1386, and the two buildings, stand at the sides, leaving no space between them, as contended by the defendants.
(2) If it be found that the plaintiffs' version is correct, then the court will further determine, if in view of the existence of this compound wall in between the two buildings, the plaintiffs will receive so much of light and air through their windows towards the north in the second storey of their building from plots 1389 and 1387 as is sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of their dwelling-house, having regard to the locality and surroundings.
29. If the trial Judge answers the second question also in the affirmative then the defendants cannot be restrained from raising their building beyond seventeen feet in height. On the other hand, if he finds that the plaintiffs' house will become unfit for the ordinary purposes of habitation or business, in that, the defendants' building, if raised beyond seventeen feet in height will amount to a nuisance, then the defendants will be restrained from raising that building beyond seventeen feet in height, as has been done by the courts below.
30. I would accordingly set aside partially the judgments and decrees of the courts below only so far as they concern the point in question namely, as to whether the defendants should be restrained from raising their building beyond seventeen feet in height, and, remand this matter to the trial court for determination of the two questions indicated above. The other concurrent findings of fact regarding the construction of the plaintiffs' building twenty five years ago, and the plaintiffs having acquired by prescription the right to enjoy uninterrupted use of light and air from plots 1389 and 1387 are affirmed. It appears that the court of appeal below has also remanded with certain directions the question of encroachment alleged to have been made by defendants on plot 1386 to the first court. This order of remand has not been challenged, and, therefore, it will stand.
31. The trial court will now determine the questions remitted to it by this Court and by the court of appeal below on the evidence on the record and dispose of the suit in accordance with law. The order of the court of appeal below that the parties will bear their own costs of that court will stand. The costs of the present appeal in this Court, however, will abide the result of the suit in the trial Court.
R.G.D
32. Order accordingly.