National India Texti... v. K.N Natesan

National India Textiles, Karur by its partner Nataraja Iyer, the appellant herein, is the defendant. One K.N. Natesan, the respondent herein, is the plaintiff.

2. The plaintiff filed the suit, O.S. No. 378 of 1977 on the file of the District Munsif' s Court, Karur for the reliefs of declaration and injunction.

3. The claim of the plaintiff is rested on the following pleas; He is the owner of the house bearing door No. 29, corresponding to new door No. 60, in Hanumantharayan Koil Street, Karur Town. The said house is a residential house, The defendant is the owner of the adjoining building, which lies on the north of his building. The northern wall of the plaintiff's building, which is shown as AB in the plaint plan is the exclusive wall of the plaintiff. There are six windows in the said wall, shown as W1, W2, W3, W4, W5 and W6. These windows are giving light and air to the plaintiff's living portion and they are in existence for well over sixty years. The plaintiff and his predecessorse in title had prescribed right to the accustomed free flow of light and air through the said windows to the various apartments in the house. All along he was enjoying the above right to light and air through the windows without any occasion of interruption whatever. The defendant had no right to interrupt the exercise of the above right in the windows. While so, the defendant recently had been making structural alterations in his building. He therefore apprehends that the proposed alteration is likely to completely block the windows. While so, the defendant recently had been making structural alterations in his building. He therefore apprehends that the proposed alteration is likely to completely block the windows or close the provision of light and air permanently. The defendant is going on with the construction and unless the defendant is injuncted, he will be put to irreparable loss, besides deprivation of his lawful right to light and air. Hence the suit praying for the aforesaid reliefs.

4. The defendant resisted the suit by briefly contending as follows: To say that the windows had been in existence for about a period of sixty years is shorn of realities of the situation. The fact is that the plaintiff put the windows only after his purchase. The structural alteration, he had been making within his limits, is not likely to cause any diminution of light and air to the plaintiff's building, in as much as he had left a gap of two feet in between the two buildings. The plaintiff is not entitled to any blanket ban restraining the defendant from constructing within his limits. In such circumstances, the suit is liable to be dismissed.

5. On the pleadings of the parties necessary and requisite issues had been framed and the parties went on trial on those issues. During the course of trial, a commissioner had been appointed and his reports and plans had been marked. On consideration of the materials placed recording the findings on all the issues, in favour of the plaintiff, learned District Munsif decreed the suit as prayed for with costs.

6. Aggrieved by the judgment and decree, the defendant filed A.S. No. 20 of 1980 on the file of Sub Court, Karur challenging the verdict of the trial court. Learned Subordinate Judge, on consideration of the materials available on record and after hearing the arguments of respective learned counsel, concurring with the findings of the trial court, dismissed the appeal with costs, by confirming the judgment and decree of the trial court.

7. On going through the decree of the trial court, he found certain mistakes in the drafting of a clause in the decree relating to injunction. He therefore ordered correction of the mistake relating to that clause by modifying the said clause to the following effect:

“that the defendant, his men, servants, agent or any one on his behalf are hereby restrained by means of permanent injunction from putting up any construction or structure in the first floor in any manner which would interfere with the plaintiff's right of easement to receive light and air through the windows W1-to W6”.

8. During the course of arguments, attention of learned Subordinate Judge had particularly been drawn to the decision in Bimaram v. Abdul Majeeth 1976 TLNJ 423 and also the decision in S. Ramayya v. Narayana Chettf AIR 1968 Andhra Pradesh 151 and those two decisions learned Subordinate Judge would feel reflect the correct position of law on the subject.

9. Aggrieved by the judgment and decree of learned Subordinate Judge, Karur, the defendant has come forward with the present action.

10. Learned counsel for the appellant/defendant would raise the following three substantial questions of law:

(1) whether the findings of the courts below were vitiated by the misreading of the evidence available on record?

(2) Whether S. 33 of the Indian Easements Act (Act No. V of 1882) applies to the facts of the case and if so, whether the courts below were bound to take into account other sources of light and air?

(3) Whether the decisions relied on by the lower appellate court are reflecting the real legal position, on the facts and circumstances of the case?

10. Learned counsel for the respondent would however repel those submissions.

11. I shall now delve deep into the arena of discussion, as respects the question of the findings of the courts below being vitiated by misreading of the evidence available on record.

12. It is the consistant case of the plaintiff that all those six windows on the northern wall of his house were there for well over a period of sixty years and consequently, he and his predecessors in title had acquired a right of easement by prescription to the unaffected flow of light and air through those windows. Those aspects of the case of the plaintiff had been categorically denied by the defendant, who, in turn, would resort to take a specific pleading that those windows were of recent origin, in the sense of the same having been put up subsequent to the acquisition of the said property by the plaintiff in the year 1958 and therefore, he would say, it cannot be stated that the plaintiff and his predecessors-in-title acquired right of easement of prescription to the unaffected flow of light and air through those windows.

13. While adjudicating these rival claims of the parties, the Courts below took into consideration the recitals in, the sale deed under Exhibit A.1 dated 5.2.1958. Trading on the path chosen by the trial court, the lower appellate court would specifically refer to in paragraph 9 of its judgment that there are categoric and specific recitals in the sale deed as to the existence of those six windows in the northern wall of the house of the plaintiff. Learned Subordinate Judge, on this aspect of the matter would say thus in his judgment:

“From the description of the property found in Ex. A1, we find that the windows were there on the date of the sale in favour of the plaintiff.”

This positive assertion is not traceable to the recitals in the document under Exhibit A.1 and this will be patent, if a cursory perusal of the same is made. What all found stated therein is the existence of a window on the southern wall of the house in the upstairs portion and this is stated so in the following words in Tamil,”

If the recitals in the document are so specific as to mention the existence of a window on the southern wall of the house, there is nothing whatever for the omission of existence of any window on the northern wall of the said house. The categorical insertion of a recital as to the existence of a window on the southern wall of the house on the upstairs, followed by a specific omission of the existence of any window on the northern wall of the house speaks volumes of the case of the plaintiff as to the existence of six windows on the northern wall of the house for well over the period of sixty years. In such state of affairs, the possibility of putting up of those windows subsequent to the purchase of the house by the plaintiff, as strenuously put forward by the defendant, cannot be ruled out of consideration.

14. The observation of both the courts below as to the existence of those six windows on the northern wall of the house,

Tamil

traceable to the specific recitals in the sale deed under Exhibit A.1, is rather attributable to the callous perusal of the recitals in the documents by the Courts below and that perhaps was the reason for their mistaken belief of the existence of the non-existing windows in the northern wall-of the house. Of course, the plaintiff, apart from examining himself as P.W. 1, also examined P.W. 2 an erstwhile tenant of the house before his purchase. P.W. 1 cannot be expected to speak as to the existence of t he said windows earlier to the purchase’ of his house and P.W. 2, on the other hand, can be expected to speak to the existence or the non-existence of the said windows, if really there are very food materials available on record to prove that e had been a tenant in the house, as proclaimed by him. Both the Courts below appeared to have swayed to give a finding that that said windows in the northern wall of the house were in existence, even prior to the purchase of the house by the plaintiff, obviously, as a result of the mistaken belief of the existence of certain recitals in the said sale deed, which were not really existing. Therefore such a finding recorded by both the courts below cannot at all be stated to be the resultant product of the proper sifting of the materials available on record, as rightly contended by learned counsel for the appellant defendant.

15. There also appears to be a misconstruction of the pleadings of the plaintiff and the evidence adduced therefore in respect of the question as to whether the defendant's property was kept as an open site or whether there was existence of any building, in respect of which structural alterations had been made by him. The pleadings in paragraph 5 of the plaint on this aspect of the matter are to the following effect:

“All along the site adjoining these windows, in the North have been kept as an open place and the Plaintiff was enjoying the above right to light and air through the windows without any kind of interruption whatsoever. Therefore the plaintiff and his predecessors in title have prescribed their title to the right of light and air through the windows on the Northern wall by prescription.”

16. There is also a pleading in paragraph 7 of the plaint in this regard, which is reflected as follows:

“While so, recently the defendant is making structural alterations in his building. The Plaintiff apprehends that the proposed alteration will result in raising up of a wall or provision of structure which are likely to completely block the windows or close the above provision of light and air permanently thereby interfering with the Plaintiffs valuable vested and perfected right to light and air through the suit windows. The defendant is going on with the construction of pillars and from the manner and design the plaintiff apprehends that he has planned to put up a wall closing the windows. The building is hurriedly reconstructed by the defendants and the defendant refuses to assure that he will not do any act which will ultimately result in deprivation of the prescriptive right to light and air through the windows by their closure or obstruction.”

17. During trial, the plaintiff, as P.W. 1, appeared to have asserted that the defendant's property was kept as a vacant site and construction had been put up and if the construction was allowed to be put up, as planned by him, it was likely to obstruct the free flow of light and air to his building. In the schedules attached to the plaint, the property of the defendant is described as ‘B’ Schedule, in which it is specifically stated, as the land and all buildings standing thereon and the plan appended to the plaint also shows the existence of the buildings standing in the property of the defendant. The Courts below without duly taking into account the seemingly contradictory plea, as raised in the plaint, believed the evidence of P.W. 1, as if the property of the defendant was kept as a vacant site and a new construction had been put up. Confounding confusions caused in the pleadings raised and the evidence adduced therefor also resulted in the misconstruing of the case of the plaintiff by both the courts below.

18. The substantial questions of law raised by learned counsel for the appellant relatable to second and third submissions, as above, may, for the purpose of convenience, be grouped together and considered for the purpose of arriving at a just decision in this case. The relevant provisions of the Indian Easements Act (Act V of 1882), which are necessary for the purpose of considering the questions involved are adumbrated in S. 1, 28, 33 and 35 thereof. For a better appreciation of the questions involved, I feel the extracting of those provisions. They are as under:

“1. Short title — This Act may be called — The Indian Easements Act, 1882.

Local Extent — It extends to the territories respectively administered by the Governor of Madras in council, and the Chief Commissioner of Central Provinces and Coorg.

Commencement . — And it shall come into force on the first day of July, 1882.

28. Extent of easement — With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:—

Easements of necessity — An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.

Other easements — The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purposes for which the right were i imposed or acquired.

In the absence of evidence as to such intention and purpose

(a) Right of way .— a right of way of any one kind does not include a right of any other kind;

(b) Right to light or air acquired by grant — The extent of right to the passage of light or air to a certain window door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;

(c) Prescriptive right to light or air — The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespective of the purposes for which it has been used;

(d) Prescriptive right to pollute air and water : — The extent of prescriptive right to pollute air or water is the extent of pollution at the commencement of the period of user on completion of which the right arose; and

(e) Other prescriptive rights . — The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.”

33. Suit for disturbance of Easement — 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 easementary of any right accessory thereto:

Provided that the disturbance has actually caused substantial damage to the plaintiff.

ExplanationI. 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 with the meaning of this section and S. 34.

Explanation II. Where the easement described 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 opening in a house, damage is substantial within the meaning of this section if it interferes materially with physical comfort of the plaintiff, though it is not injurious to his health.

“35. Injunction to restrain disturbance — Subject to the provisions of Specific Relief Act, 1877, Ss. 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement.

(a) if the easement is actually disturbed when compensation for such disturbance might be recovered under this chapter;

(b) if the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed, disturb the easement”

19. The salient provisions, as referred to above, has come up for consideration before various high courts and also the Supreme Court of India. Divergent views are getting reflected on the question as to whether S. 28 operates in isolation without reference to the other provisions, namely, Ss. 33 and 35 or as to whether all the aforesaid provisions operate conjointly, the sense of controlling the provisions of S. 28. Certain High Courts aired the view that English notion or conception of the right of easement to light and air are not at all applicable to places where the Act was in force and S. 28 has to be construed in a strict grammatical fashion, taken into account the language used therein.

20. The other view entertained by certain High Courts was even in places where the Act had been extended and had been in force, the English notion or conception of the right to light and air are applicable and in deciding the issue, the right to light and air, the combined effect of the Erovisions adumbrated in Ss. 28, 33 and 35 has to e taken into account, in affording reliefs prayed for.

21. In ( P.C.E. Paul v. W. Robson AIR 1914 P.C. 45 which is the leading decision on the point, plaintiffs had brought an action for infringement of certain rights of light. It was conceded therein that they had acquired rights of light for the windows on the east side of then-premises. The question for consideration was whether plaintiffs were entitled to relief unless the obstruction complained of is a nuisance. Their Lordships noticed two conflicting views on the field. One stream of authorities gave countenance to the view that by the enjoyment of light for a period of 20 years, there could be acquired an indefeasible right to the enjoyment of a like amount of light in the future. The conflicting stream of authorities supported the other view that nothing constituted an infringement of rights of light which did not amount to an actionable nuisance, and that the amplitude of previous enjoyment was no measure of the rights acquired thereby. The opinion of Lord Sarvery in Coil's Case Colls 1904 A.C. 179 v. Home and Colonial Stores was accepted by the Judicial committee as laying down the correct law. The opinion was to the effect:—

“The owner. of the dominant tenant 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 Eldown.. whether the obstruction complained of is a nuisance?

22. Their Lordships also referred to the opinion of Lord Atkinson in Coil's case which said:—

“it would appear to me that that case establish the principle that 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 that so 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.”

23. The following three cases, namely, Rajani Kanta v. Ali Akbar AIR 1945 Calcutta 438 and Alifannesa v. Ali Akbar AIR 1958 Assam 83 and Bansidhar v. Mathu mal AIR 1959 patna 517 applied the English notion or conception of the right to light and air.

The aforesaid three decisions had been referred to for consideration before a learned Judge of the Andhra Pradesh High Court in S. Ramayya v. Narayana Chetty AIR 1968 Andhra Pradesh 151 and with the reference to the applicability of those cases, learned Judge said thus:

“The decisions of the High Courts of Calcutta, Assam and Patna relied upon by the learned counsel for the appellate will not apply to the present case as the Act does not apply to the areas from which those cases arose. S. 1 of the Act states that the Act extends to the territories respectively administered by the Governor of Madras in council and the Chief Commissioners of the Central Provinces and Coorg. In places where the Act does not apply the courts have applied the English law on the point. As st ated in the decision of the House of Loreds in Colls v. Home and colonial stores 1904 A.C. 179 “to constitute an actionable obstruction of ancient light it is not enough that the light is less than before. There must be substantial privation of light, enough to render the occupation of the honse uncomfortable according to the ordinary notions of mankind and (in the case of business premises) to prevent the plaintiff from carrying on his business as beneficially as before. (Vide Head Note of the Report)”. It was also pointed out that the nature of the right to light of an infringement was not altered by the prescription Act (2 and 3 Wil1 4.c 71)”. That was the law that seems to have been followed in the decisions of the Calcutta, Assam and Patna High Courts cited before me by the learned Counsel for the appellants. But clearly the Act applies to the Madras Provinces and the case before me governed by the Act and S. 28 of the Act is a complete answer to the contention raised by the learned counsel for the appellants.”

24. An occasion arose to consider the question as involved in this case, before the High Court of Judicature at Allahabad in the decision in Bhulwati Devi v. Munna Lal AIR 1982 Allahabad 20. It was a case where the plaintiffs claimed i injunction against defendants on the ground that the construction made by the defendants on the western side of their house obstructed their right to receive light and air through the ventilators of their house. The suit was decreed by the trial court in its entirety. On appeal, the decree of the trial court was modified. Whereas the decree of the trial court for removal of construction complained of by the plaintiffs/respondents was affirmed, the decree of the trial court in respect of the parnala was set aside and the plaitiffs/respondents suit in that regard was dismissed. Aggrieved by the decree passed by the lower appellate court, the defendants have filed the second appeal. The plaintiffs/respondents, on the other hand, had also filed cross-objections against the dismissal of their claim in respect of the parnala.

25. The argument raised by learned counsel for the appellants is traceable to paragraph 8 and it runs thus:

“Learned counsel for the appellant vehemently contended that both the courts below have committed a patent error of law and jurisdiction in granting a decree for mandatory injunction to the plaintiff respondent in regard to their alleged right to receive light and air through the ventilators in question without addressing themselves to an important issue namely, whether or not the plaintiff respondent suffered any substantial prejudice or injury by the acts complained of by the plaintiff respondent in c onsequence of the construction of the building of the defendant appellants. It was submitted that in order to constitute an actionable obstruction of free passage of light or air through the ventilators in question into the house of the plaintiff, it was not enough to allege or prove that the quantity of light or air which was previously being received by the plaintiff respondent had been reduced or that the same is less than they enjoyed earlier. In order to be able to claim a mandatory injunction, it was submitted, it was essential for the plaintiff-respondent to prove that there has been substantial diminution of light or air sufficient to render the occupation and use of his house inconvenient or uncomfortable. Neither of the two courts below has made any attempt to find but whether there has been such substantial deprivation or obstruction result ing in substantial injury to the plaintiff-respondent.”

26. In support of the argument, learned Counsel placed reliance on three decisions of that Court, namely, Ram Narayan Ram v. Ram Dhani Ram 1973 All. W.R(HC)173 Suraj Narain Ram v. Kalyan Das AIR 1929 All 430 Shambhu Prasad v. Mahadeo Prasad AIR 1993 All 493 Finding that the contentions raised by learned counsel for the appeal as deriving solidified support from those decisions, learned counsel for the respondent submitted that the view taken by the said court, in the aforesaid decisions, requires reconsideration, as it seems to have overlooked the impact of S. 28. On the appellants contentions, learned Judge said thus:

“On an analysis of Ss. 28, 33 and 35 of the Easements Act, this court has clearly held in all the aforesaid cases that the plaintiff must establish a substantial injury or deprivation of the right sufficient to render the use and occupation of his house inconvenient or uncomfortable according to the ordinary requirements of mankind. These cases do lay down in clear terms that it is not enough to allege and prove that there has been a reduction in the quantum of air and light in the physical sense by the Acts complained of by the plaintiff. The plaintiff must further prove that the curtailment of right has been to substantial as to render a comfortable living or use of the residence of course judged by ordinary notions, impossible.”

27. While dealing with the contentions of the respondents, learned Judge said thus in paragraph 12:

“In the case reported in AIR 1933 All 439, Shambhu Prasad v. Mahadeo Prasad , the Division Bench did notice the effect of S. 28. However, the Division Bench observed that S. 28 could not be read in isolation and that if Ss. 28, 33 and 35 were read together, it was clear that the intention was that an injunction could be issued only upon the plaintiffs satisfying the court that there had been substantial interference with his physical comfort. I find myself in complete agreement, with respect, with the view expressed in each one of these decisions.”

28. A similar situation, as we now have, also arose for decision by this Court in the decision in Bimariam v. Abdul Majeeth 1976 T.L.N.J. 423. A learned Judge of this Court, who decided the case, after making reference to a Division Bench decision of this court reported in V.N. Chandravadivelu Chettiat v. Varadappa Chetty 1975 I MLJ 401 =88 L.W. 49 and also S. Ramayya v. Narayana Chetty , construed the combined effect of Ss. 15, 28 and 33 and 35 of the Easements Act and said thus:

It is the combined effect of Ss. 15, 28, 33 and 35 of Indian Easement Act 1882 that have to be considered in the present second appeal. As I pointed out already, there are the concurrent findings of both the courts below that the respondents had acquired the right to light and air by prescription and if the appellants are allowed to proceed, with the construction the said construction will interfere with that right. We have to consider whether the respondent herein was entitled to the injunction which he had prayed for. The extent of the right dealt with in S. 28 has been cut down when the question of disturbance has actually occurred and the dominant owner claims compensation as contemplated by S. 33. S. 33 will clearly relate to a suit for compensation whether the disturbance has actually occurred and that disturbance has caused substantial damage to the dominant owner. In such a situation, when the dominant owner claims compensation, the section states that the disturbance should have actually caused substantial damage to the plaintiff. What would be the substantial damage in respect of the disturbance to the easement to the free passage of air and light is dealt with in explanations II and III to S. 33 expressly. Even S. 34 though relating to an injunction to restrain the disturbance of an easement consists of two limbs one in clause (a) and the other in clause (b). Clause (a) deals with a situation where the easement is actually disturbed and expressly refers to the case being one in which compensation might be recovered under that chapter, viz., under S. 33 and 34. Since S. 3 refers to Ss. 52 to 57, both inclusive, of the Specific Relief Act, 1877, both mandatory and perpetual injunctions fall within the scope of the section and S. 35(b), from the very nature of the case, will cover perpetual and restrictive injunctions only. Mandatory injunctions or perpetual injunctions will fall within the scope of S. 35(a). Whether restrictive injunctions or perpetual injunctions can also fall within the scope of S. 33(a) is not necessary to decide in this. All that is pertinent to point out is that for the purpose of claiming compensation under S. 33, in addition to disturbance of easement, substantial damage actually caused by the disturbance must be established. Same is the position with regard to the grant of injunction under S. 35(a), which maybe an alternative to the claim for compensation since that subsection refers to the case being one in which compensation should be recovered under the chapter. However the position with regard to the grant of injunction in cases falling under Sections. 35(b) is different. It is the claim for damages or the grant of mandatory injunction which was considered by the Division Bench of this court in 1975 I MLJ 401. Therefore, the Bench, against the background of the statutory provisions contained in S. 33 of the Act, observed that the easement acquired by ancient lights was not measured by the amount of light enjoyed during the period of prescription and there was no infringement unless that which was done amounted to a nuisance, and a person did not obtain by his easement a right to all the light he had enjoyed and he obtained a right to so much of it as would suffice for the ordinary purpose of inhabitancy or business according to the notions of mankind having regard to the locality and surroundings. The Bench expressly referred to S. 33 of the Act and the explanations contained therein in support of its conclusion. However, the Bench had no occasion to consider the effect of S. 28 of the Act because S. 33 itself in express terms states that the dominant owner will not be entitled to get compensation for the disturbance of easement unless the said disturbance had actually caused substantial damage to the plaintiff. The result is for the purpose of S. 33 the establishment of mere disturbance of easement was not enough and in addition to the disturbance of easement the plaintiff-dominant owner will have also to establish that the said disturbance had caused substantial damage to the plaintiff. Naturally, that has to be pleaded and proved and certainly the question of compensation or a mandatory injunction will arise only when the right of easement has actually been invaded and disturbed and the infringement of the right of the dominant owner has already taken place. When the infringement of the right of the dominant owner or his right of easement is only threatened, there is no question of the dominant owner claiming compensation and all that he can do is to avoid the infringement or disturbance, by applying for and obtaining an order to restrain the servient owner from so infringing or disturbing the right of the dominant owner. Where the dominant owner merely wants to prevent a threatened action, there is no question of the disturbance having actually caused substantial damage to the dominant owner and therefore the dominant owner either pleading that he had suffered substantial damage or proving the same, does not arise. Consequently, the decision of the Bench referred to above has to be understood only against the background of the relief prayed for in that case, viz., a relief of mandatory injunction or in the alternative compensation after the servient owner was actually interfered with the right of easement of the dominant owner. However, the position with the regard to a threatened or intended disturbance of the right of easement is entirely different and that is covered by S. 35(a) of the Act. That section clothes a dominant owner with a right to an injunction to restrain the disturbance of easement if the disturbance is only threatened or intended and when the act threatened or intended must necessarily, if performed, disturb the easement. The stage at which a suit under S. 36(b) is instituted should be kept in mind for the purpose of finding out what was expected on the part of the plaintiff to be pleaded in the suit. From the very nature of the case, the plaintiff could plead that he has suffered substantial damages and all that he could plead was that if the threatened or intended action was not allowed to be continued there will be a disturbance of his right of easement. The contract between S. 33 and S. 35(b) is not only apparent but also significant. For the purpose of getting a relief under S. 33 a mere disturbance of the right of easement is not enough, but that disturbance should have actually caused substantial damage to the dominant owner. But, for the purpose of an action under S. 35(b), a threatened or intended disturbance is enough and therefore from the very nature of things, there cannot be any scope for importing into an action under S. 35(b) the requirement as to the plaintiff having suffered substantial damage caused by the disturbance to his right of easement by the defendant. It is this distinction that has been lost sight of by the learned District Munsif who tried the suit and who dismissed the suit of the respondent herein.

My attention was also drawn to a judgment of Andhra Pradesh High Court in AIR 1968 A.P. 151. In that case also, it is a right of easement in respect of light and air which was the subject matter of consideration and the Andhra Pradesh High Court after referring to the provisions contained in S. 28 of the Act to which I have already drawn attention granted a permanent injunction. A combined reading of S. 28 and S. 35(b) will make it absolutely clear that once there is a threat of disturbance to the right which a dominant owner has acquired by prescription to the light and air, certainly the said dominant owner can institute a suit for a permanent injunction and obtain the same by merely proving that the act threatened or intended must necessarily, if performed, disturb the easement.”

29. To put a stop to the raging controversy on the subject, useful reference may be made to the decsion reported in Chapsibhai Dhanjibhai Danad v. Purushottam. 1871 6 Ch. 809. That was a case arising from Bombay, to which the Indian Easements Act had been extended by Act VIII of 1891 and Their Lordships of the Supreme Court had the occasion to consider the English notions or conceptions of the right of easement to light and air and its applicability in the Indian context and they said thus:

“As to the light and air through the windows on the western side, it is clear from Explanations II and III to S. 33 that to constitute an actionable obstruction of free passage of tight or air to the openings in a house it is not enough that the light or air is less than before. There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, according to the ordinary notions of manking. ( See Colls v. Home and Colonial Stores Limited 1904 The plea produced in evidence shows that the central part of the appellant's building has five windows on the ground floor, five in addition to one smaller window on the first floor and four on the second floor. All these windows are in the rear side of the building and open out an to the said strip of land. There can be no doubt and the plan shows clearly that as a consequence of construction by the respondent, there would be a deprivation, partially though it would be, of light and air previously enjoyed by its appellant through these windows, especially as they are on the western side. On the ground floor all the five windows are affected. On the first floor, only three windows are affected, and that too partially. On the second floor, none of the four windows is affected at all. Thus, so far as the ground and first floors are concerned, the appellant would not have the same amount of light and air as before. But the evidence shows that there are openings, doors and windows, on each of these floors on the front side, i.e., on the eastern side. There was some evidence also that the ground floor had so far been used as a godown or a store room though the appellant asserted that he had been using it also as a living room. No doubt, however, was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to amount to a substantial privation, so as to render occupation of he house by him uncomfortable. In the absence of such proof he was r ightly nonsuited by the High Court.”

30. On the face of the law, as declared by the apex of the judicial administration of the country, which had not been brought to the notice of the learned Judge, who decided the case in Bimarian's case 75 Bombay Law Reported 735 = AIR 1971 SC 1878, the said decision of this court cannot at all be construed as one having binding effect and therefore it is, reliance placed by the lower appellate court, on the said decision of this court, in arriving at a finding, cannot at all be stated to be sustainable.

31. As respects the 45 rule, learned counsel for the appellant also referred to the decision reported in The Delhi and London Bank Ltd. v. Hem Lal Dutt 1976 TLNJ 423, wherein it is said that the 45degree rule is not a positive rule of law, but 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.

32. My attention was also drawn to the said 45 degree rule to a passage occurring in the book B.B. Katiyar's law or Easements and Licences in India, Ninth Edition by learned author N.S. Bindra at pages 662 and 663, which is as order:

“14. Rule forty five degrees angle :— The controversy regarding the forty five degrees rule has been set at rest by Colls v. Home and Colonial Stores Ltd. 1904 A.C. 179, where it was laid down that there is no hard and fast rule with regard to the angle of forty-five degrees. Since the decision in Colls case it must be taken as settled law thaf “there is no rule of law that if a person has forty-five degrees of unobstructed light through a particular window left to him he cannot maintain an action for a nuisance caused by diminishing the light which formerly came through that window.”

In City of London Brewery Company v. Tenant ILR XIV Calcutta 839 1873 L.R. 9 Ch.App. 212, Lord Selborne said;. Further with regard to the forty-five degrees, there is no positive rule of law upon that subject; the circumstances that forty-five degrees are left unobstructed being merely an element in the question of fact, whether the access of light is unduly interfered with; but undoubtedly there is ground for saying that if the Legislature, when making general regulations as to buildings, considered that when new buildings are erected, the light sufficient for the comfortable occupation of the will, as a general rule, be obtained if the buildings to be erected opposite to them have not a greater angular elevation than forty five degrees, the fact that forty-five degrees of sky are left unobstructed may, under ordinary circumstances, be considered prima facie evidence that there is not likely to be material injury, and of course, that evidence applies more strongly where only a lateral light is partially affected and all the lights are not obstructed. I make that observation, not imagining that either at Law or in the court, any Judge has over meant to lay down as a general proposition that there can be no material injury to light if forty-five degrees of sky are left open; but I am of opinion that if forty-five degrees are left, this is some prima facie evidence of the light not being obstructed to such an extent as to call for the interference of the court-evidence which requires to be rebutted by direct evidence of injury.”

A person may be left with much less than forty-five degrees of light and yet suffer no actionable diminution. Thus, where defendants proposed to erect a seventy-three-foot building with only a forty-five-foot street separating it from the plaintiff's building, it was held that, as even the ground-floor windows of plaintiff's building would still be unusuallv will lighted the plaintiff could not sustain a quia timet Semon v. Bradford (1922) 2 Ch. 737 action But experience shows that it is, generally speaking, a fair working rule to consider that no substantial injury is done to him where an angle of forty-five degrees is left to him, especially, if there is good light from other directions as well.

33. After referring to the aforesaid passage in the book B.B. Katiyar's Law of Easements and Licences in India, learned counsel for the appellant would also draw my attention to paragraph 6 of the Additional report filed by the Commissioner and it runs thus:

“A radius was used to measure the degrees, between the thread and windows. For each window measurement of degrees were taken from 3 points namely from upper point of the window, centre point of window and lowest point window. Now I am taking W6 window. Its upper most point measured 105, mid point 78 and its lower point 55 W5 and W4 windows are identical. Hence the measurement of degrees is also same which is as follows: from its upper portion it was measured 130, from its centre point 76 and from its lower point 67. Coming to W3 window it is 120 from upper point, 105 from centre point and 60 from its lowest point. As regards W1 and W2 windows, I have already stated in my previous report.”

34. Worthy it is, at this juncture, to mention that it is not as if there are no windows in the house receiving light and air, other than those situate at the northern wall of the house. The Commissioner during inspection of the house of the defendant, noticed the existence of several windows on different walls of the house, and identified them in the plan prepared by him. Admittedly, the house is located on the eastern side of the north-south street facing west with a doorway and two windows X and Y situa te on either side. There are two partition walls — one on the west and the other on the east of the hall, separating the two rooms in the front and back portion of the house. On the western partition wall, there are three windows, A1, A2 and A3 and there are three other windows B1 B2 and B3 on the eastern partition wall and the said windows in the partition walls are located in such a way facing each other in straight line. Three more windows, C1, C2 and C3 are located on the southern wall. The Commissi oner, in fact, as revealed by his first report, noticed the effect of the closure of the windows W1, W2, W3, W4, W5 and W6 as to the sufficiency or otherwise of the light and air received into the house by actual demonstration. Paragraphs 4 to 8 of the said report, dealing with that aspect, which is relevant, are as follows:

4. Coming to W2 window the distance between AB wall and defendant's Wall is about 1 1/2 feet. There is construction near W2 window almost blocking its view. W3 window is situate in the room on the western side in the upstairs of Plaintiff house. The room is 9 feet in breadth and 12 feet in length. W3 Window is situate at a height about 3 feet from the floor. A little demonstration was made. All the W1, W2 and W3 windows were closed. The room suddenly plunged into darkness and there was not sufficient air. Then they were opened. There was sudden rush of air and the room was lit up with sun light. The constructions of defendant's 1st flooring near W1, W2 and W3 are underway. There are also two other windows west facing (which are shown in my plan as X, Y) in the room where W1, W2 and W3 are north facing. No W1, W2, W3 were closed and the other two west facing windows (X, Y) were opened. There was sufficient light and air coming from the said windows (X, Y). NP 5. Now lam coming to W4, W5 and W6 windows. All these windows are fitted with glass panels having sun shade. These W4, W5, W6 are situate in the downstairs hall of plaintiff s house at a height of about 14 feet. The hall measures 19 feet north-south, 23 feet east-west and 20 feet in height. A1, A2, A3 are the windows situate on the Western side of the Hall leading to a room. B1, B2, B3 are the windows situate on the eastern side of the hall leading to a room. There was not sufficient light or air coming from these A1, A2, A3 and B1, B2, B3 windows. C1, C2, C3 are the windows situate on the southern side of Hall.

6. Again a little demonstration was made. All the windows of the hall were closed. Then W4, W5 and W6 windows alone were opened. The hall was getting sufficient light. But I could not feel the rush of air. Now W4, W5 and W6 were closed and C1,-C2, C3, windows were opened. Of course light fell in the wall but not so bright as to light of the hall.

7. Another demonstration was conducted. The plaintiff and his counsel hid the W4 window with a blanket and there was not sufficient light coming from W4 window. Near W4 and W6 windows there were no constructions but very near to W5 window i.e., 2 feet away from AB wall a pillar is stretching, almost colliding with the sun shade of W5 window. The distance between W6 window and defendant's wall is about 3 feet. P8 is the passage to hall. At the time of my visit, W4, W5, and W6 were closed.

8. I am of opinion if further constructions are put up by defendant so as to obstruct W4, W5 and W6 windows, there will be diminution of light to the hall of plaintiff house. As far as W1 and W2 windows are concerned even if these windows are obstructed there that will be sufficient air and light coming from X, Y windows. Coming to W3 window, being situate in the room is the only source of ventilation for that room. If constructions put up by the defendant obstructing W3 window, the room may not get suf ficient light and air.”

35. In the light of the first report and the additional report, as above, by the commissioner, learned counsel for the appellant would however say that it cannot at all be stated that there is any likelihood of deprivation in a substantial ways to the right of the plaintiff to receive light and air through the windows of his house so as to amount to nuisance, even assuming for argument's sake that the said windows were in existence for well over the statutory period of twenty years and more, as contended by the plaintiff, even in the extreme case of the proposed construction under Exhibit B2 plan is completed.

36. In view of what has been stated above, it goes without saying that both the courts below had not approached the case in the proper perspective, both on questions of fact as well as on law and in such a situation, I feel, the proper course to be adopted is to remit the case back to the trial court for fresh consideration, after affording adequate opportunities to both parties to adduce additional evidence, if any, in the light of what has been stated above.

37. In the result, the Second Appeal is allowed the judgment and decree of both the courts below are set aside and the suit is remitted back to the trial court for fresh consideration and disposal according to law on merits. It is however open to both the parties to adduce fresh evidence, in proof of their respective claim. In the circumstances of the case, I make no order as to costs.

38. Since the suit is of the year 1977, the trial court is directed to list the suit, giving top priority and get along with the case day-to-day, without adjournment, immediately on receipt of the records from this court.