JUDGMENT

1. This appeal was filed by the plaintiff but he died during the pendency of the appeal in this Court. Thereupon his wife was substituted. The suit was one for a mandatory injunction requiring the defendant to remove a wall raised by him in so far as it obstructed two windows on the northern wall of the upper storey of the plaintiff's two-storied house and also for an injunction restraining him from interfering with the access of air and light through the windows aforesaid. The plaintiff's case was that he had constructed the building in the Bengali year 1307 and the windows concerned had been built at the same time. Since then he or his tenants had been in enjoyment of light and air through the windows. The land to the north of the building was formerly vacant but defendant 1 purchased it in the name of defendant 2, who is his son, about 2 or 3 years ago and built a one-storied house the roof of which is about 2 cubits below the sill of the disputed windows. Recently, however, it was alleged, the defendant had done something more. He had raised a wall about 5 cubits in height on the southern extremity on the roof of his house and the result had been to obstruct totally the passage of light and air through the northern windows of the hindmost room in the plaintiff's upper storey. The defence was that no easement of light and air had been acquired by the plaintiff or his tenant. The erection of the wall was admitted but it was stated that the wall had been built in order to secure privacy for the defendant's house inasmuch as some of the young men living in the plaintiff's house, viz., his daughter's sons, had been peeping through the disputed windows into the inner apartment of the defendant's house. It was further alleged that the northern wall of the plaintiff's house had been built in such a way that there was a real apprehension that it might collapse on the defendant's building. The wall, therefore, the defendant contended, had been built also for the purpose of protecting his house, should the plaintiff's house collapse. It has been found by both the Courts below that the plaintiff's tenement had acquired an easement of light and air through the disputed windows. It was not seriously disputed that there had been diminution both of light and air. The whole question therefore is whether the diminution had been such as gave the plaintiff a cause of action. The matter may conveniently be considered under two heads, viz., light and air. As regards light, although a complaint had been made in the plaint it appears that at the trial no evidence was led to prove any substantial invasion of that amenity. The trial Court, however, went into the matter and held that in spite of diminution sufficient had been left of the light for purposes of comfortable habitation, having regard to ordinary notions of mankind. On that finding he held that the plaintiff was not entitled to any relief on the ground of any infringement of his easement of light.

2. As respects air, however, the trial Court held that the diminution, such as had taken place, amounted to an actionable nuisance. The learned Munsif pointed out that the room had besides the disputed windows one other window on the eastern side besides two doors on the south and a third door on the west. He held, however, that in considering whether the ventilation had been affected to such an extent as to make the room unfit for comfortable occupation the doors could not be taken into consideration. He gave the reasons for excluding the doors. One was that the doors opened on other parts of the same building and therefore they were not apertures with respect to which the plaintiff had acquired any right of prescription. The other reason was that the doors, at any rate, in India, were meant to be closed and therefore the habitability of a room from the point of ventilation could not be judged on the hypothesis that the doors would be kept open. In the result the trial Court allowed the plaintiff's claim in part. He granted him a negative injunction restraining the defendant from interfering with his enjoyment of light and air through the disputed windows and he granted also a mandatory injunction directing the defendant to pull down so much of the obstruction of the wall or to open such apertures in it as would leave the opening of the disputed windows unobstructed. Prom that decision the defendant appealed. The lower appellate Court held that the principle of law applicable was that stated by the learned Munsif. He agreed with the learned Munsif that there had been no infringement of the easement of light on which any action could be founded. As regards air, however, he came to a different conclusion. He thought that in judging the habitability of the room from the point of view of ventilation the doors could not be disregarded but they should be taken into account. He pointed out that there would be sufficient ventilation, probably more than what was required, if the doors were kept open and he suggested that they might safely be kept open if the plaintiff would only fit them up with iron bars or if no valuables were kept in this room. The learned Judge also referred to what he seems to have regarded as an important consideration, viz., that the room concerned was not, according to him, originally intended to be used as a bedroom. In the result the learned Judge set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit. Thereafter the present second appeal was filed.

3. There can be no question that the Courts below placed before themselves the correct proposition of law. The old conflict as to whether the owner of a dominant tenement was entitled to all the light and all the air which his building had enjoyed for 20 years or over or whether he was entitled to only such a measure as would be required for ordinary and comfortable occupation of the building is now resolved by the decision in 1904 A.C 179.1 It was laid down in that case by the House of Lords that the owner of a dominant tenement who had acquired a prescriptive right to the use of light and air through certain defined apertures could insist on the preservation to him of only such quantities of light and air as might be reasonably required for comfortable occupation. He was not entitled to the excess even if he had enjoyed it in the past. If there was an infringement he could sue the person guilty thereof only if the diminution amounted to an actionable nuisance. The principle stated in that case was adopted in India by the Judicial Committee in 41 I.A 1802 and must be taken as the law to be followed and applied at least in the Provinces where the Indian Easements Act does not apply but the Limitation Act does. Both the Courts below having proceeded on that principle, it cannot be said and it was not urged that any error of law had been committed in that regard. As regards light again, nothing further need be said as both Courts have held as a matter of fact that the diminution did not amount to a nuisance and as the plaintiff himself did not complain at the trial of any infraction of his easement of light. The sole question therefore is whether the learned Judge was right in his decision as respects the easement of air. I am of opinion that the learned Judge is not right. As regards his observation that the room in question was not originally intended to be used as a bedroom, Mr. Mukherji who appeared for the respondents very fairly conceded that the learned Judge was laying down a proposition erroneous in law. It is well known that the user of a building has no materiality whatsoever in cases of the easement of light and air. Even a tenement which is vacant and unoccupied for the statutory period of 20 years or over can during the same period of non occupation acquire easement rights over the servient tenement.

4. As regards the other observation of the learned Judge that the doors must be taken into account I am of opinion that there too he was in error. He does not appear to disagree with the learned Munsif that with the doors closed the room would be unfit for comfortable occupation so far as ventilation was concerned but he proposed to provide ventilation by making the plaintiff keep his doors open on making certain structural alterations if necessary. It need hardly be pointed out that this principle is altogether erroneous. If the owner of a dominant tenement has acquired an easement right he cannot be compelled to take a certain order regarding his own property in order to enable another person to commit a nuisance. In the second place the principle to be applied, as stated above, is that the balance of light or air left must be sufficient for comfortable occupation having regard to the ordinary notions of mankind. Mankind there must mean mankind of the locality or class to which the, parties belong. It seems to me wholly contrary to the ordinary notions of people in this country that they should sleep in room at night with all the doors open, I may also point out that ordinary habitation must mean habitation for all the members of the family and as the trial Court pointed out such habitation, as suggested by the learned Judge, would not be appropriate in the case of female members. It seems to me therefore that the learned Judge was not right in holding that the grievance about want of ventilation could easily be removed if the plain, tiff kept his doors open after providing them with iron bars and if the matter must be judged on the hypothesis that the doors would be closed at night, then clearly the learned Munsif's finding remains and there is a nuisance.

5. In judging the habitability or otherwise of the building both Courts have confined themselves to the particular room in which the disputed windows are located. Speaking for myself I entertain grave doubts as to whether that was correct. Both under the Limitation Act and the Easements Act the easement of light and air is acquired by a building and not by any particular room in a building. It seems therefore that if such an easement has been acquired and if it has been infringed, in judging whether the diminution has been such as to amount to a nuisance, regard must be had not merely to the effect upon the particular room where the aperture or apertures are situated but to the entire building. In the present case it would be, in my view, necessary to examine not merely the position as regards the hindmost room where the windows are situated but also as regards the central room and the southern room. Mr. Mukherji however pointed out that both parties had gone to trial on the footing that the invasion of the plaintiff's right, such as had been, was confined to that one room and no evidence bearing upon the other rooms had been led. That appears to be true and in that state of the case made by the parties and the evidence led, I do not think that the matter can be pursued further so far as the present appeal is concerned.

6. What I have said above is sufficient to show that the learned Judge's decision as regards the infringement of the plaintiff's easement of the air is erroneous and must be set aside. The plaintiff has, on the facts proved in the case, established an actionable nuisance as respects this easement. It appears that the injunction which the learned Munsif granted was of a somewhat unusual character. He directed the defendant to pull down so much of the obstructing wall as would leave the opening of the disputed windows unobstructed but gave him an option to open such apertures in it as would have the same result. Mr. Mukherji complains that these directions were not sufficiently specific and might cause misunderstanding. I think, it may be made clear that what is meant is that the defendant will, if he keeps his wall, open in it apertures just opposite each one of the disputed windows and of the same size both in height and width.

7. The result is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the learned Munsif restored with the modification indicated below. There will be an injunction restraining the defendant from interfering with the plaintiff's prescriptive right to air passing through the disputed windows on the northern wall of the northern room of the first floor of the building in suit.

8. The plaintiff's right to an easement of light and air through those windows will be declared. There will further be a mandatory injunction on the defendant directing him to open in his wall two apertures, one against each of the disputed windows just opposite the window and of exactly the same size and at the same height or in the alternative to pull down at his option the wall opposite the disputed windows altogether. The mandatory injunction must be carried out within four weeks of the arrival of the record in the Court of first instance, failing which the plaintiff will be entitled to have it carried out in execution, in either of the two forms indicated above.

9. There will be no order for costs in this appeal but the plaintiff will have his costs both in the trial Court and the Court of appeal below. Let a self-contained decree be drawn up in this Court.

G.N

10. Order accordingly.