Decided on March 19,1929



- (1.) This was a suit brought by the plaintiff for a mandatory injunction against the defendant with reference to an encroachment of the plaintiff s easement by the defendant. The plaintiff was the owner of a house in Belgaum which had four windows, two on the ground-floor and two on the first floor in the northern wall. He alleged that those windows were ancient windows, that he had acquired an easement in respect of them by prescription for nearly forty or fifty years user, and that the defendant purchased an open site and began building his house at a distance of six feet from the northern wall of the plaintiff s house. The learned Subordinate Judge held that the plaintiff proved that he had acquired the right of easement of light and air to all the four windows, and that the erection of the building by the defendant materially interfered with the comfort and the health of the plaintiff, and that the defendant did not prove that the plaintiff acquiesced in the erection of his building, and, therefore, granted a mandatory injunction ordering the defendant to pull down his house to such an extent that there might be no obstruction to the free passage of light and air to the windows in the northern wall of the plaintiff s house under the rule of 45 degrees. On appeal the plaintiff s right of easement as regards the two upper windows was negatived on the evidence. The learned Judge held that the plaintiff proved his right of easement with regard to the lower two windows, and found on the evidence that though the building caused diminution of light and air to the lower two windows, the diminution was not such as to make the residence in the house uncomfortable, and that the plaintiff had acquiesce d in the building of the defendant, and therefore came to the conclusion that the plaintiff was not entitled to the mandatory injunction, but was entitled to damages, and reversed the decree of the lower Court, and remanded the case for a finding on the issue as to the amount of damages.
(2.) It is urged in this appeal, first that the finding recorded by the learned Assistant Judge on appeal is not sufficient to deprive the plaintiff of his right to a mandatory injunction, and, secondly, that the finding with regard to the acquiescence of the plaintiff is erroneous.
(3.) On the first point the learned Judge found that there was a galli between the house of the plaintiff and that of the defendant to the extent of about six feet, and that the tenant in the house continued to occupy the house notwithstanding the diminution of light without any diminution of rent, and, taking into consideration these two circumstances and the other evidence in the case, has recorded a finding to the following effect: "This clearly shows that the residence has not become discomfortable or useless." The effect of the appreciation of evidence by the lower Court amounts to a finding that though there was a sensible diminution of light and air which the plaintiff was accustomed to receive through the lower two windows, the occupation of the house has not become uncomfortable. In Jamnadas Shanlcarlal v. Atmaram Harjioan (1877) I.L.R. 2 Bom. 133 it was held that the re-erection of his house by the defendant notwithstanding notice from the plaintiff, so as to darken some of the principal rooms of the plaintiff s house, making them unfit for occupation during the day without artificial light, is an injury which cannot be adequately redressed by an award of damages, and against which the Court will grant relief by issuing a mandatory injunction directing the defendant to pull down so much of the house as is necessary to stop the injury, In Ghanaaham Nilkant Nadkarni v. Moroba Ram-chandra Pai (1894) I.L.R. 18 Bom. 474 it was held that though the plaintiff s light had been sensibly diminished by the defendant s new building, there had not been such a large, material and substantial damage as to require interference by injunction, or that the plaintiff s room had been rendered unfit for the purpose for which it might reasonably be expected to be used. To the same effect are the decisions in the cases of Kalliandas v. Tulsidas (1899) I.L.R. 23 Bom. 786 s.c. 1 Bom. L.R. 495 and Framji Shapurji v. Framji Edulji (1905) I.L.R. 30 Bom. 319 s.c. 7 Bom. L.R. 825 In Colls v. Home and Colonial Stores, Ltd ([1904] A.C. 179 it was held that to constitute an actionable obstruction of ancient lights it is not enough that the light 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 mankind and in the case of business premises, to prevent the plaintiff from carrying on his business as beneficially as before. At p. 204 Lord Davey observes: According to bath principle and authority, 1 am of opinion that the owner or occupier of the dominant tenement 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, and that the question for what purpose he has thought fit to use that light, or the mode in which he finds it convenient to arrange the internal structure of his tenement, does not affect the question. The actual user will neither increase nor diminish the right. In Jolly v. Kine [1907] A.C. 1 Lord Loreburn observed (p. 2): The law on this subject has been laid down in this House in the case of Colls v. Home land Colonial Stores, Ltd, and I understand it to be as follows... He does not obtain by his easement a right to all the light he has enjoyed. He obtains a right to so much of it as will suffice for the ordinary purposes of in habitancy or business according to the ordinary notions of mankind, having regard to the locality and surroundings. That is the basis on which the decision of this House proceeded. Both the cases were fully discussed by the Privy Council in a later decision in Paul v. Robson where it was held that the decision in Jolly s case is an authoritative exposition of the decision in Coil s case and that the law formulated by Lord Davey is the law laid down by that decision, viz,, that the owner of a dominant tenement does not obtain by his easement a right to all the light he has enjoyed during the period of prescription but obtains a right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings, and that there is no infringement of the easement acquired by ancient lights unless that which is done amounts to a nuisance. Peacock on Easements at p. 633 states that the test of under what conditions adequate relief can be afforded by pecuniary compensation is difficult of precise definition, as every case of actionable disturbance must depend on its own circumstances and vary in degree, but so far as it is possible to deduce any principle of general application from the decisions, it seems that where the damage caused by the disturbance is not irremediable, or where the comfort or utility of the dominant tenement has not been destroyed or very substantially diminished, the Court will usually award damages instead of granting an injunction, but where the case is one of irreparable or very substantial injury, a mandatory injunction and not damages will be granted. Having regard to the finding in this case that though the light and air has been sensibly diminished, the occupation of the house has not become uncomfortable, we think this is not a case for granting a mandatory injunction, and that the view of the lower Court that pecuniary compensation is an adequate relief is, in our opinion, correct.;

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