1. The defendants in O.S. No. 758 of 1969 on the file of the Court of the Additional District Munsif Sirkali who succeeded before the trial Court but lost before the first appellate Court are the appellants herein. The first defendant is the daughter and the second defenant is the father. The respondent herein is the owner of R.S. No. 331/9 while the first defendant is the owner of R.S. 331/10 abutting the southern main wall in R.S. No. 331/9. The respondent instituted the present suit to restrain the defendants and their men by means of an order of permanent injunction from raising the wall over R.S. No. 331/10 abutting the plaintiffs Southern main wall in R.S. No. 331/9 ( sic ) so as not to affect the right to light and air through the windows and ventilators acquired and perfected by prescription. The plaintiff alleged in the suit that in R.S. No. 331/10 except for a tiled shed, the entire space to the entire length was vacant, that the plaintiff had been peacefully enjoying the light and air through the ventilators without any obstruction or interruption for the past three decades and since the inception of the building, that the plaintiff had thus acquired the right to light and air through the ventilators and windows provided in this building for the convenient enjoyment of his building including the ventilators provided on the southern main wall, that the first defendant who was in possession of R.S. No. 331/10 began to construct a building south of the plaintiff's southern wall west of the tiled shed shown in the plan appended to the plaint, that the defendants had opened a trench close to the southern main wall of the plaintiff for laying foundation for brick wall to be raised east to west, west of the tiled shed, that the plaintiff protested to the same on 2nd October, 1969 when the trench was dug up, but the defendants high-handedly and with the assistance of a body of men had put up a brick wall which bad risen to a height of about 8 feet from the trench level. It is on the basis of these allegations of disturbance of the right of easement of light and air, the suit was instituted. The appellants defended the suit putting forward the contention that there would be no such disturbance. The trial Court which tried the suit recorded two findings of fact, viz., (1) that the proposed construction by the appellants herein would definitely affect the right of the plaintiff-respondent to air and light, and (2) that the ventilators and windows had been in existence for more than thirty years and the plaintiff-respondent had acquired right of easement to light and air by prescription. Notwithstanding these two findings the trial Court dismissed the suit instituted by the respondent holding that the construction would obstruct only two of three ventilators in the kitchen and through the third ventilator the plaintiff-respondent would be in a position to get substantial light and air and the plaintiff-respondent had not specifically pleaded in the plaint that he had incurred any substantial damage rendering the kitchen room unsuitable for use, nor had he pleaded that be would not be getting sufficient light and air. It is in this view the suit instituted by the respondent was dismissed by the trial Court. However, on appeal preferred by the respondent, the learned Subordinate Judge of Mayuram decreed the suit as prayed for. Hence the present second appeal by the defendants in the suit.
2. The learned counsel for the appellants, having regard to the findings of fact referred to above, confines his arguments only to the right of the respondent to obtain the decree for injunction on the facts found by the Courts below. The learned counsel for the appellants seeks to sustain the conclusion of the trial court on the points urged before it, viz., that even after the closure of the two ventilators in the kitchen, through the third ventilator, sufficient light and air would be available to the respondent in the kitchen and the respondent himself had not specifically pleaded in the plaint that he had incurred any substantial damage rendering the kitchen room unsuitable and that he would not be getting sufficient light and air. In support of this contention the learned counsel relied on the decision of a Bench of this Court in Chandravadivelu Chettiar v. Varadappa Chetty 1975-I-M.L.J. 401=88 L.W. 49. In my opinion, the above argument is misconceived.
3. S. 15 of the Indian Easements Act, 1882 (hereinafter referred to as the Act) deals with the acquisition of easement by prescription and according to that Section where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years, the right to such access and use of light or air shall be absolute. S. 28 deals with the extent of the right so acquired. Dealing with the extent of the right acquired by prescription in respect of air and light, sub-S. (c) of S. 28 states:
"28(c): 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 irrespectively of the purposes for which it has been used."
S. 33 is one of the Sections dealing with the remedy available to a dominant owner in the event of any injury or disturbance to his right of easement. S. 33 is as follows:
"33. 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 easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to the plaintiff. Explanation 1: 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 within the meaning of the is section and S. 34."
"Explanation-II: Where the easement disturbed 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 openings in a house, damage is substantial within the meaning of this section, if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health."
S. 35 is yet another section which expressly deals with a suit for injunction that may be filed by a dominant owner to restrain the disturbance to his right of easement. S. 35 reads as follows:
"33. 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 easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to the plaintiff. Explanation 1: 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 within the meaning of the is section and S. 34."
"Explanation-II: Where the easement disturbed 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 openings in a house, damage is substantial within the meaning of this section, if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health."
S. 35 is yet another section which expressly deals with a suit for injunction that may be filed by a dominant owner to restrain the disturbance to his right of easement. S. 35 reads as follows:
"35. Subject to the provisions of the Specific Relief Act 1877 Act IV of 1874, S. 52 of 1952 (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."
4. It is the combined effect of these statutory provisions that has 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 respondent 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. It is against the background of these facts we have to consider whether the respondent herein was entitled to the injunction which he had prayed for.
5. It may be immediately seen that 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 where the disturbance had 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 of S. 33 expressly. Even S. 35 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 the chapter, viz., under Ss. 33 and 34. Since S. 35 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 will fall within the scope of S. 35(a); whether restrictive injunctions or perpetual injunctions can also fall within the scope of S. 35(a) is not necessary to decide in this case. 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 may be an alternative to the claim for compensation, since that sub-section refers to the case being one in which compensation could be recovered under the chapter. However, the position with regard to the grant of injunction in cases falling under S. 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 the decision already referred to viz., the decision in Chandravadivelu Chettiar v. Varadappa Chetti 1975-I-M.L.J. 401=88 L.W. 49. 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 off 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 on 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, in the alternative compensation, after the servient owner has actually interfered with the right of easement of the dominant owner.
6. However, as pointed out already, the position with regard to a threatened or intended disturbance of the right of easement is entirely different and that is covered by S. 35(b) 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. 35(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 not plead that he has suffered substantial damages and all that he could plead was that if the threatened or intended action was allowed to be continued there will be a disturbance of his right of easement. The contrast 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.
7. My attention was also drawn to a judgment of the Andhra Pradesh High Court in S. Ramayya and others v. Narayana Chetty A.I.R. 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. As I have already pointed out 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. In the present case, as I have pointed out already, even the trial court which dismissed the suit had recorded a finding that if the intended construction of the appellants was allowed to be proceeded with, it will interfere with the right of easement to light and air which the respondent had acquired by prescription. Under such circumstances, I am clearly of the opinion that the learned Subordinate Judge was right in decreeing the suit of the respondent, even though the reasoning which he has given for the said conclusion is not very clear. Hence, the second appeal fails and is dismissed. There will be no order as to costs.
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