T. S. Misra, J. - (1.) THIS appeal by the plaintiff arises out of his suit for permanent injunction to restrain the defendants from raising constructions adjacent to his house which is situated in the north of a land known as Ram Leela ground. In the southern wall of the plaintiff's house there exist certain Parnalas and Naabdans as well as three windows in the first floor which open towards the Ram Leela ground. The plaintiff claims to have acquired ease-mentary rights of light and air and also a right to flow rain water through the evas as also through the Naabdan in question which according to the plaintiff have been in existence for more than twenty years.
(2.) THE defendants contested the suit denying the averments made by the plaintiff. THE suit was decreed by the trial court but on appeal the decree was modified by the appellate court below. THE relief for injunction to restrain the defendants from making constructions in front of the window and ventilators of wall A B was disallowed. THE rest of the decree of the trial court was maintained. Aggrieved by that decision the plaintiff has filed this second appeal. A cross-objection has also been filed by the defendants. After hearing the learned counsel for the parties. I remitted an issue in the following terms to the appellate court below for recording its finding thereon :- "Whether or not the constructions contemplated to be made by the defendants will amount to a nuisance ?" The appellate court below has returned its finding holding that the constructions contemplated to be made by the defendants will not amount to a nuisance. The appellant has filed an objection to the said finding. I have heard the learned counsel and have gone through the finding returned by the appellate court below on the said issue, It has been found that though the windows have been closed by the impugned constructions the source of light and air is still there, that is, through the three doors in the northern wall beyond which there is verandah and thereafter open space. Thus sufficient light and air does pass through the three doors inside the drawing room. Considering the evidence on record the appellate court below held that there has been no dismunition of light and air to such an extent that the room has been rendered virtually useless and uninhabitable. These findings are based on a careful scrutiny of the evidence and I see no reason to disagree with the same. Obviously the rooms in question have been receiving enough light and air through other openings therein and have not been rendered useless or uninhabitable because of the constructions already existing or those which might be made hereinafter. The appellate court below was, therefore, in the circumstances of the case justified in holding that the contemplated constructions will not amount to a nuisance.
(3.) NOW coming to the other points involved in the appeal, it has to be seen as to whether the appellant is entitled to have the injunction which has been refused to him by the appellate court below. As pointed out in Peter Charles Ernest Paul v. William Robson, 41 IA 180 PC, the owner of a dominant tenament does not obtain by his easement a right to all the light he has enjoyed during the period of prescription. He 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. There is no infringement of the easement acquired by ancient lights unless the act which is done amounts to a nuisance. In the instant case it has been found that the impugned act would not amount to nuisance, hence the claim for injunction, so far as the windows and ventilators were concerned, was rightly held to be unsustainable. To constitute an actionable obstruction of free passage of light and air to the openings it is not enough that the light and air is less than before but it has rendered the ocoupation of the premises uncomfortable. The appellate court below has, however, restrained the defendants from making any constructions so as to obstruct the flow of water from the Parnalas and the disputed Naabdan shown in the site plan which forms part of the decree of the trial court. The appellate court below had held that the plaintiff had perfected his right by prescription to flow water through these Parnalas on the land which is in the South of his house. It further observed that, if the flow of water was stopped by the defendants it would undoubtedly cause substantial damage as in the rainy season the water accumulate and damage the building. With regard to the Naabdan it was said by the appellate court below that it was a very old one and if the Naabdan was closed the plaintiff would suffer substantial injury in-as-much as water of daily use will accumulate in the house and cause nuisance. The trial court had also held accordingly with regard to the Parnalas and Naabdan. The concurrent findings recorded by both the courts below, so far as Parnalas and Naabdan are concerned, are findings of fact. They are based on evidence and I see no reason to interfere with the same in second appeal. It has not been made out that these findings are perverse or otherwise illegal. The appellate court below was, therefore, justified in maintaining the decree of the trial court in so far as it related to Naabdan and Parnals in question. The cross objection has, therefore, no merits and is accordingly rejected.;