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T.R. Bhushanam v. C. Umapathi Mudaliar
Structured Summary of the Opinion — Appeal from City Civil Judge, Madras (15 October 1934)
Factual and Procedural Background
This is an appeal from the decree of the City Civil Judge, Madras dated 15th October 1934 in O.S. No. 51 of 1933. The plaintiff sought a declaration that he was entitled to free passage of light and air through a marked aperture and several windows (marked A and B–F in the plaint plan) and a permanent injunction restraining the defendants from raising any structure on their premises to the south of the plaintiff's house that might obstruct that light and air.
The parties are contiguous owners of houses Nos. 13 (plaintiff) and 12 (defendants), Kuppumutha Mudaly Street. The plaintiff's house was built in 1905 and has ground, first and second floors (the second floor not material to the suit). The defendants proposed raising a wall about 12 feet above their existing wall to construct a terraced upstairs, which, the plaintiff alleged, would shut out light and air through the apertures and windows in question.
At trial the defendants resisted on two grounds: (1) that the plaintiff had not acquired an easementary right by prescription; and (2) that the proposed wall would not substantially diminish the light and air entering through the apertures. Evidence showed the apertures existed from 1905 or 1906, supporting the plaintiff's claim to a prescriptive easement. The trial Judge found that although some diminution would result, it would not cause physical discomfort; he refused to grant the injunction but ordered the defendants to pay Rs. 150 as damages, on condition that upon payment they might raise the wall by 10 feet 8 inches. The plaintiff appealed; the defendants filed no cross-objections.
Legal Issues Presented
- Whether, on the facts and evidence, the plaintiff is entitled to a permanent injunction restraining the defendants from raising the proposed wall which would obstruct the passage of light and air.
Arguments of the Parties
Plaintiff's (Appellant's) Arguments and Evidence
- The plaintiff asserted a prescriptive easement to light and air through the apertures and windows, supported by evidence that those apertures existed from 1905 or 1906.
- The plaintiff produced an expert witness (P.W.5, a retired District Board Engineer) who stated in chief that the ground floor would lose all light if the proposed wall were built; however, under cross-examination he admitted some light would remain and that the main complaint concerned the absence of breeze from the south.
Defendants' Arguments and Evidence
- The defendants denied that the plaintiff had acquired an easement by prescription (this was resisted at trial, though the written evidence on prescription was described as one-way in favour of the plaintiff).
- The defendants argued that the proposed wall would not substantially diminish the light and air required for health and comfortable use.
- They produced an expert (D.W.1, a retired Madras Corporation Engineer) who opined that the proposed wall would not reduce light and air to a level affecting health and cited a government sanitary rule that an open space of 6 feet is sufficient; that 6-foot space was available to the plaintiff.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Paul v. Robson, 1914 P.C. 45 | Establishes the correct test for whether diminution of light constitutes a nuisance: the amount of light must fall below that "sufficient ... for the comfortable use and enjoyment" of the dwelling by ordinary standards of the locality. | The court relied on Paul v. Robson to endorse the trial Judge's locality-based test — whether the remaining light and air would be enough for comfortable use according to ordinary requirements in that congested locality. |
| Kelk v. Pearson, (1871) 6 Ch. 809 | Quoted (through Paul v. Robson) for the formulation that no nuisance is created if the amount of light is sufficient "according to the ordinary notions of mankind for the comfortable use and enjoyment" of the house or room. | The court reproduced the Kelk v. Pearson passage (as cited in Paul v. Robson) to explain the substantive threshold for when obstruction of light/air becomes a legal wrong (nuisance). |
| Framji Shapurji v. Framji Edulji, (1906) 30 Bom. 319 | Interprets the term "disturb" in Section 35 of the Easements Act to mean an illegal obstruction — i.e., an obstruction in respect of which a suit would lie (a civil wrong). | The court relied on this ruling to conclude that for an injunction under Section 35 Easements Act the threatened act must be an illegal disturbance amounting to a civil wrong (nuisance); mere threatened disturbance insufficient unless it would be actionable. |
| Pazun Daung Bazar Co. Ltd. v. Ellenman's Arracan Rice and Trading Co. Ltd., 1934 Rang. 144 | Explains that under Indian law (with reference to Section 56 Specific Relief Act) the court's concern is whether pecuniary compensation would afford adequate relief, rather than the defendants' conduct, and that the Indian approach differs materially from English law. | The trial Judge's reliance on Section 56 was supported by reference to this case; the appellate court regarded it as supporting the proposition that damages may be adequate and justify refusing an injunction. |
Court's Reasoning and Analysis
The appellate court framed the sole issue as whether the plaintiff was entitled to an injunction. It proceeded by examining (1) the trial Judge's findings, (2) the evidence, and (3) the applicable legal principles.
First, the court observed that the trial Judge's award of Rs. 150 damages suggested he may have thought the proposed wall would cause sufficient diminution to amount to a nuisance; but on reading the judgment the appellate court found the trial Judge actually intended to find that diminution would not cause physical discomfort. The appellate court held that the damages award could not be supported on the basis of a finding of nuisance, but because there had been no appeal against the damages order it would nevertheless stand.
Second, the appellate court reviewed the evidence. The plaintiff's expert (P.W.5) asserted substantial reduction and in chief said the ground floor would lose all light if the wall were built, but in cross-examination admitted some light would remain and that the principal grievance was loss of breeze. The appellate court noted that P.W.5's evidence did not establish diminution to the level of causing physical discomfort; that factor was not addressed in his examination.
Third, the court considered the defendants' expert (D.W.1), who opined the proposed wall would not reduce light and air necessary for health and cited a government rule that 6 feet open space suffices; the plaintiff had that 6-foot space. The appellate court treated this evidence as supporting the conclusion that physical discomfort would not result.
Fourth, the court emphasized the context of the locality: it was congested, many houses had common walls, and occupants in such localities neither expect nor are entitled to the same amount of light and air as in more open areas. The correct test, endorsed by the trial Judge and adopted by the appellate court (with authority from Paul v. Robson and the passage from Kelk v. Pearson), is whether the remaining light and air would be sufficient "for the comfortable use and enjoyment" of the plaintiff's house according to ordinary requirements of people in that locality.
Fifth, the court analysed the statutory and remedial framework. It applied Section 35 of the Easements Act, interpreted (following Framji Shapurji) to require that a threatened disturbance be an illegal obstruction (i.e., one actionable as a civil wrong) to justify injunctive relief. The court stressed that damages and injunction are alternative remedies for the same wrong and that an injunction should only be granted where the threatened act would necessarily disturb the easement so as to amount to a nuisance.
Sixth, the appellate court considered the discretionary aspect of injunctive relief. It held that even if the trial Judge thought substantial damages were due, that did not automatically entitle the plaintiff to an injunction. The trial Judge relied on Section 56 of the Specific Relief Act (particularly clause (i), and the court noted clause (g) was also relevant) to refuse an injunction where pecuniary compensation would be adequate; the appellate court viewed this reliance as acceptable, and cited Pazun Daung Bazar to show the Indian approach centres on adequacy of compensation rather than defendant's conduct.
Finally, on the totality of evidence and circumstances, and in the exercise of judicial discretion, the appellate court concluded that the plaintiff had not established that the trial Judge had exercised his discretion wrongly in refusing the injunction.
Holding and Implications
Holding: The appeal fails and is dismissed with costs.
Implications and direct effects:
- The trial Court's order refusing to grant the injunction is affirmed; the defendants are not restrained by this court from raising the proposed wall to the extent permitted by the trial court's decree.
- The trial Court's order that the defendants pay Rs. 150 as damages (and the related condition permitting them to raise the wall by 10 feet 8 inches upon payment) stands, because there was no appeal or cross-objection against that order.
- The appellate court did not treat the decision as creating any new legal precedent; it applied established principles (as in Paul v. Robson, Kelk v. Pearson, Framji Shapurji) and exercised discretion under Section 56 Specific Relief Act to regard damages as adequate relief in the circumstances.
1. This is an appeal from the decree of the City Civil Judge, Madras, dated 15th October 1934, in O.S. No. 51 of 1933, a suit for a declaration that the plaintiff is entitled to free passage of light and air through the aperture marked A and the windows marked B, C, D, E and F in the plan attached to the plaint and for a permanent injunction restraining the defendants from raising any wall or other structure on their premises to the south of the plaintiff's house which might have the effect of obstructing such free passage of light and air. The plaintiff and the defendants are the owners of two contiguous houses Nos. 13 and 12, Kuppumutha Mudaly Street. The plaintiff built his house in 1905 and his house has got, besides the ground floor, a first floor and also a second floor. The second floor, however, is not material for the purpose of the present suit. The plaintiff's case is that the defendants are attempting to raise a wall 12 feet above the existing wall of their house in order to build a terraced upstairs and that this wall will shut out the light and air which formerly used to enter through the apertures mentioned above. The defendants resisted the suit on two grounds, namely that the plaintiff had not acquired an easementary right to light and air by prescription as alleged by him and also that the proposed wall would not substantially diminish the light and air which used to be admitted through the apertures in question. On the first point the evidence was all one way, namely that the apertures were in existence from 1905 or 1906 and that therefore the plaintiff had acquired an easementary right by prescription to light and air with regard to the apertures in question. It was on the second ground that the controversy centred during the trial. The trial Judge found that though the proposed wall would cause some diminution of light and air the diminution would not be so much as to cause physical discomfort. He was of opinion that in the circumstances no injunction should be granted as desired by the plaintiff but that the defendants should pay Rs. 150 as damages to the plaintiff on condition of paying which they were to be at liberty to raise the height of the present wall by 10 feet 8 inches. The plaintiff appeals and the defendants have not filed any cross-objections.
2. The only point for determination in this appeal is whether in the circumstances of the case the plaintiff is entitled to an injunction as prayed for by him. The trial Judge's finding that the plaintiff is entitled to damages appears to imply that the proposed wall would cause so much diminution of the light and air that used to be admitted through the apertures in question as would amount to a nuisance, for it is only if the proposed wall would be a nuisance that damages could be granted. It is however clear from a reading of his judgment that this was not what he intended to find; there are several passages in the judgment from which it is clear that the trial Judge was of opinion that though there would be some diminution of light and air the diminution would not be such as would cause physical discomfort. Damages appear to have been granted by the trial Judge not because he found that the proposed wall would be a nuisance or would constitute an infraction of the plaintiff's right of easement but as some compensation for diminution of light and air. On the findings of the learned trial Judge it would not be possible to support his order requiring the defendants to pay the plaintiff Rs. 150 as damages ; but as there has been no appeal from this order either in the form of a separate appeal or in the form of cross-objections, the order regarding damages must stand. That order however cannot be regarded as sufficient to establish the fact, that the proposed wall would be a nuisance; and that question has to be decided independently in the light of the evidence in the case and of the circumstances.
3. The evidence in the case is mainly that of two retired Engineers, one on each side. P.W. 5, a Retired District Board Engineer, has given evidence on behalf of the plaintiff and D.W. 1, who is a Retired Engineer of the Madras Corporation, has given evidence on the side of the defendants. According to P.W. 5 the reduction of the light and air will be substantial. Though in examination-in-chief he stated that the ground floor would lose all the light if the proposed wall is built; he admitted in cross-examination that there would be some light even if the proposed wall is built and that the chief complaint was the absence of breeze from the south. His evidence does not show that the diminution of light and air would be such as to cause physical discomfort. This consideration of physical discomfort does not appear to have been present to his mind nor was it put to him during his examination.
4. On the other hand, D.W. 1 was of opinion that the proposed wall would not cause any diminution in the necessary amount of light and air required for the purpose of health. He also states that according to a rule made by the Sanitary and Health Experts of the Government an open space of 6 feet is sufficient for the purpose of admission of light and air. This space of 6 feet is available to the plaintiff. So far as the evidence goes therefore it would appear that it has not been proved by the plaintiff that the proposed wall would cause physical discomfort by diminishing light and air to such an extent as would have that consequence. The locality is a congested one according to the trial Judge, and most of the houses in the locality even have common walls. In a locality of this kind people cannot expect and do not expect as much light and air as they would do in more open localities; and the test that has been applied by the learned trial Judge in this matter, namely whether the quantity of light and air that would be left if the proposed wall is built would not be enough for the comfortable use and enjoyment of the plaintiff's house according to the ordinary requirements of people who live in the locality appears to be the correct test. It is enough in this connexion to refer to Paul v. Robson 1914 P.C. 45. In particular the following passage quoted in that case would appear to, show that the test adopted by the trial Judge is the correct one:
There must 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 as long as he receives through the windows of his dwelling house, or, in the case of a particular room in his dwelling house through the windows of that room, an amount of light which, to use the words of James, L.J. in Kelk v. Pearson (1871) 6 Ch. 809, 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.
5. A case of this kind is governed by Section 35, Easements Act, according to which, subject to the provisions of Sections 52 to 57, Specific Relief Act, an injunction may be granted to restrain the disturbance of an easement where the disturbance is only threatened or intended (as in the present case) when the act threatened or intended must necessarily, if performed, disturb the easement. Though the word used in this section, namely disturb may not prima facie appear to connote a tort or civil wrong, it is clear from the ruling in Framji Shapurji v. Framji Edulji (1906) 30 Bom. 319, that the word "disturb" found in this section must mean an illegal obstruction or, in other words, an obstruction in respect of which a suit would lie. It would therefore follow that whether the act in question has been committed or only threatened or intended, there must be a right to sue or, in other words, there must be a civil wrong before any injunction can be granted just as there must be a right to get damages before an injunction can be granted. Damages and injunction are two remedies alternative in character given in respect of the same wrong, namely, an infraction of the legal right by way of easement; and such an infraction takes place only when the deprivation is such as to amount to a nuisance. It appears to me that in this case the plaintiff has really not established the fact that the proposed wall would amount to a nuisance or that the deprivation of light and air which it would cause would amount to a nuisance. Even otherwise, the plaintiff has to show before he can succeed in this appeal that the trial Judge has exercised his discretion wrongly in refusing to grant an injunction. It does not follow that, even if the trial Judge was of opinion that the plaintiff was entitled to substantial damages, he must have been necessarily granted an injunction. The matter is one of discretion.
6. The question is, can it be said that he exercised his discretion wrongly? He was of opinion that where damages would be an adequate remedy no injunction should be granted and he relied on Section 56, Specific Relief Act. It would appear that in relying on Section 56, Specific Relief Act, the trial Judge had in his mind Clause (i) of that section which is to the effect that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in the case of breach of trust, an injunction cannot be granted. This view has-been also adopted in a recent case in Pazun Daung Bazar Co. Ltd. v. Ellenman's Arracan Rice and Trading Co. Ltd. 1934 Rang. 144, where it has been stated that in this respect the law of India differs materially from the law of England and that a Court in India is not concerned with the conduct of the-defendants but only with the question whether the invasion of the plaintiff's right is such that pecuniary compensation would not afford adequate relief. I would also add that apart from Clause (i), Section 56, Specific Relief Act, Clause (g), also would apply to the present case in my opinion, for am not at all satisfied; that in this case the proposed wall would amount to a nuisance if built though it would to some extent be inconvenient and diminish to some extent the light and air that is now available to the inmates of the plaintiff's house. In these circumstances I am of opinion that the plaintiff appellant has failed to show that the trial Judge was wrong in refusing to grant an injunction as prayed for by him. The appeal therefore fails-and is dismissed with costs.
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