1. The facts of this case are as follows:—The parties are next door neighbours, residing in two adjoining houses owned by them at Aligarh. They are of the same caste (Yaish Agarwal), the plaintiff being a member of the local Bar. Considering the trivial nature of the suit and the circumstances of the case it is evident that they are both obstinate, unreasonable men, for the matter in dispute is one that with the exercise of a little common sense and reason could and ought to be settled in a very few minutes. Their houses as pointed out adjoin. The ground level of the plaintiff's house is considerably higher than that of the defendant's. The former's house is to the west of that of the latter. Originally neither house had an upper storey. The eastern portion of the plaintiff's house with which we are concerned consists of two parallel rooms with a double verandah on the western side. The eastern of the two rooms opens into the other room which in turn opens into the verandah.

2. The only apertures in the former ??? these two rooms, whereby light and air can be admitted to it, are (1) the doorway or doorways leading into the second room and two very narrow small slits (called roshandans and said to be 8 inches high by 4 inches wide) in the eastern wall, situated just below the roof and overlooking the roof of the defendant's house.

3. The room as a consequence is very dark, so dark that it is impossible to read. It has been used so far as a store-room for grain etc. The other room is used for the storing of the apparel, etc., of the ladies of the household. Sometimes in the not weather the ladies use this second room for the purpose presumably of escaping from the glare and heat of the oriental sun. Furthermore the rain water, which falls on the plaintiff's roof, had a mode of escape through two parnalas on the eastern side, i.e, through two holes in the parapet and thence down the side of the wall apparently on to the defendant's roof.

4. About 14 years ago the defendant built an upper storey to his house and this led to a dispute, as the plaintiff naturally wished to retain his right to light and air through the two slits or roshandans and also his right to discharge the rain water through the parnalas. A suit was brought and a compromise effected. The compromise is on the record. It was agreed that the defendant should so build that the roof of his upper storey should be at least six inches below the bottom level of the two slits and that he should not build a “madgari” or parapet on his roof adjoining the plaintiff's wall (the word used in vernacular is “mulhik”), The object of these stipulations about the “madgari” and the level of the roof was obviously to prevent the two roshandans from being blocked up and to prevent the rain water, which flows off the plaintiff's roof on to that of the defendant, from going through the roshandans into the plaintiff's room.

5. The defendant has now done three things. (1) He has put a new window in the north wall of his upper storey.

6. (2) He has built a new room with a wall 17 feet high on the roof of his upper storey. The western wall of his room is parallel to the eastern wall of the plaintiff's house and at a distance of 10 feet from it. Both the eastern and western walls of this new room have large openings blocked with iron gratings.

7. (3) He has raised the roof of his upper storey about six inches between the plaintiff's wall and the western wall of his new room; so that it is now on the same level as the lower edges of the two roshandans; but he has left a small drain six inches deep up against the plaintiff's wall (and parallel to it) and this he has continued along the side of his own roof so as to lead the rain water away into his own compound. The present suit was brought by the plaintiff when the new constructions were commenced, and he Sought for a mandatory injunction to restrain the defendant from carrying out his intentions. He also applied for a temporary injunction pending the decision of the suit.

8. Apparently the raising of the roof by six inches and the opening of the new window had been completed and the new room had risen a few feat only when the Munsif went to the spot and viewed it.

9. The Munsif allowed the defendant to continue the building of the east, north and south walls of the new room, but forbade the building of the western wall pending the decision of the suit. He visited and examined the plaintiff's eastern room.

10. During the course of the suit he again inspected the premises and to see what would be the effect of the building of the western wall of the new room, he had the space, which it would occupy, filled with a darri and then he examined the plaintiff's room.

11. He found that the interference caused thereby in the supply of light through the two slits or roshandans was very slight indeed, i.e, he found that in so far as the right to light and air through the two slits was concerned there had been no material interference with the plaintiff's physical comfort or such as to prevent him using the room as beneficially as he had been using it in the past.

12. He found in regard to the window that there was no invasion of the plaintiff's right of privacy.

13. In regard to the raising of the roof he concluded that the drain was too narrow and that the roof had been raised improperly.

14. He decided

(1) That there was no necessity to restrain the defendant from completing his new room and that Rs. 10 was sufficient compensation for the very slight invasion of the right to light and air.

(2) He dismissed the claim in respect to the window, holding that it had been in existence for six years before suit.

(3) He granted an injunction directing the defendant to lower the roof six inches and in addition to make a drain six inches deep in the roof after it had been so lowered and at a distance of one foot from plaintiff's wall. He decreed accordingly.

15. The plaintiff appealed and urged that he was entitled to an injunction in regard to the new room and also the new window. He also objected to the order as to costs. The defendant filed objections to the award of damages and the direction as to the roof and drain.

16. Pending the appeal the defendants finished the construction of the room. The lower Appellate Court held as follows:—

In regard to the window, that it had been made six years before suit and there had been no invasion of the plaintiff's privacy. It, therefore, disallowed the appeal on this point.

17. In regard to the question of light and air through the roshandans it seemed to be of opinion that the building of the western wall of the new room constituted a complete obstruction of both light and air, but did not base its decision on this. It held that the building of this room even at a distance of ten feet from the plaintiff's wall was a breach of the agreement between the parties in the former litigation, that the roof of the defendant's house was to be kept six inches below the level of the roshandans. That agreement or compromise was embodied in the decree in the former litigation. The Court, therefore, held that the defendant had no right to build a room anywhere on his roof at any distance whatsoever from the plaintiff's wall and as he had completed it during the suit, the plaintiff was entitled to a mandatory-injunction for its demolition and the prevention of any such construction in the future.

18. In regard to the raising of the level of the roof between the new room and the plaintiff's wall, it held that the first Court's order was bad in so far as it ordered the making of so deep a drain (as it would amount to demolishing the roof) and also as to the position ordered for the drain, i.e, one foot from the plaintiff's wall.

19. It directed that the drain should be two feet from this wall and that bricks should be put on both sides of it, but it did not lay down any depth for the drain nor can it be understood what it meant by saying that bricks should be put on both sides of the drain.

20. Plaintiff desires that the rain water from his roof shall be allowed to flow away on the defendant's roof in such a manner as to obviate any of it from finding its way through his wall into his room. The defendant appeals and the plaintiff has filed objections.

21. It is urged

(1) that the lower Appellate Court has completely misunderstood the former compromise; that it was never intended thereby to prevent the defendant from building a second storey provided this can be done without invading the plaintiff's rights in regard to light, air and flow of water;

(2) that there has clearly on the facts been no material invasion of any such right and the plaintiff has no cause of action;

(3) that in any case the plaintiff is not entitled to the injunction granted and the defendant is ready to pay reasonable damages so as to enable the plaintiff to increase the area of the roshandans to the extent of one square-foot each, as he is entitled to do under the compromise decree.

22. The plaintiff objects,

(1) to the dismissal of his suit in regard to the window;

(2) to the change in the order of the first Court as to the depth of the drain to be made in the defendant's roof to carry off the rain water.

23. Taking the objections first, it is clear that there is no force in the plea as to the window, there having been no invasion of privacy. In regard to the lower Court's order regarding the drain, that order is not intelligible nor do we see the necessity of any drain. Under his former undertaking the defendant was not entitled to raise the roof and must maintain it at a level of six inches below the bottom level of the roshandans, otherwise an excessive rainfall might possibly result in water flowing through those roshandans into the plaintiff's room and the defendant cannot be allowed to obstruct the free flowing of the water from off his own roof in such a way as to cause or to make probably any damage to the plaintiff's house.

24. In regard to the appeal, we have examined the former compromise and we cannot agree that it was in the contemplation of the parties that the defendant should never at any time build on his roof at any point. The building of a second storey was not even in contemplation at that time. The defendant was building his first storey and the agreement was that the roof thereof was to be kept six inches below the roshandans so as to allow the water to flow off and that no madgari or ridge should be built adjoining the plaintiff's wall so as to obstruct the two roshandans.

25. There is nothing to show that the defendant was to be precluded from building, provided he did not obstruct the light and air going through these two openings.

26. Further, to say that a wall built at a distance of 10 feet from the plaintiff's wall is a complete obstruction of these openings is absurd.

27. We have to see whether in the circumstances of the present case the plaintiff is entitled to an injunction and if so, to what injunction—(a) in regard to the right as to air and light; (b) as to the flow of water.

28. At the commencement of the suit the plaintiff complained of a threatened disturbance only, but the defendant has since completed his constructions and it is now a case of actual disturbance or no disturbance at all.

29. Ordinarily the plaintiff in such cases, if he is entitled to relief, is entitled to an injunction rather than to damages. It is open to him, of course, to be content with damages, but Section 35 of the Easements Act shows that he is not entitled to an injunction except in such cases where he would be entitled to recover damages under Chap. IX of the Act.

30. Section 33 of the Act allows compensation to be recovered for the disturbance of an easement provided that the disturbance has actually caused substantial damage to the plaintiffs. The Explanation to the section deals with the meaning of the words “substantial damage.”

31. The Court below has not dealt with the question of substantial damage, but the first Court did and the evidence is on record, and we to shorten the proceedings deal with the issue here, as the evidence is on the record.

(a) We take first the question of light and air. We have already pointed out that the two roshandans are small slits which admit very small quantities of both light and air; that the plaintiff's room has been used in the past only as a storeroom being really far too dark for any other purpose. The Munsif's two inspections show that the construction of the defendant's room on the roof does not materially interfere with the plaintiff's physical comfort or prevent him using his room as beneficially as he has done in the past. As the Munsif has put it, the disturbance is “very slight,” so slight that he thought the trivial sum of Rs. 10 would be ample compensation. We have no hesitation in holding on the evidence that the disturbance, if any, at all is trivial and not material.

“De minimus non curat lex” The law does not concern itself with a disturbance which is trivial or immaterial.

In regard to the easement of light and air we hold that the plaintiff is not entitled to either damages or injunction.

(b) In regard to the flow of water, however, the case is different. The defendant has raised the portion of his roof between the plaintiff's wall and the western wall of the new room so that it is on a level with the lower edges of the roshandans. It is true that he has made a drain six inches deep next to the plaintiff's wall, but it is extremely doubtful if this will suffice to carry off easily the result of an extra heavy storm. He has acted contrary to the former compromise and there is danger of some damage to the plaintiff. In our opinion there has, in this respect, been material invasion of the plaintiff's right and the appropriate relief is to grant an injunction directing the defendant to lower this portion of his roof to a level six inches below the bottom level of the roshandans and to so arrange that rain water falling thereon shall flow away easily through proper and adequate channels.

32. We have dealt with all the points in the case. It is not a case for damages, as the plaintiff came into Court at once when the disturbance was threatened and the defendant completed his structures pending the suit at his own peril.

33. The result is that we grant the plaintiff a mandatory injunction directing the lowering of the roof between his western wall of the new room and the plaintiff's eastern wall as laid down above. The rest of the plaintiff's suit will stand dismissed. As he has failed in two-thirds of his suit and succeeded in one-third, the parties will receive and pay costs in all Courts in proportion to success and failure.

34. Decree modified.