- (1.) Heard the learned counsel for the parties.
(2.) Brief facts of the case are that the plaintiff filed a suit for temporary injunction on the ground that defendant has obstructed the window of the plaintiff which was opening from the kitchen and store of the plaintiff obstructing the enjoyment of air and light in the kitchen and store by the plaintiff. According to the plaintiff, by closure of window in dispute, there is a 100% loss of free air and light in the kitchen and store. The trial Court dismissed the suit of the plaintiff holding that since there are two doors and one ventilator already available in the kitchen and, therefore, by closure of window in dispute, there is no substantial diminution of air and light. The trial court's Judgment and decree dated 8-11-1994 was challenged by the plaintiff by filing appeal which was allowed by the appellate Court vide judgment and decree dated 16-11 -1995. The appellate Court accepted the evidence of the plaintiff and reached to the conclusion that by closure of the window in dispute, there will be substantial diminution of air and light. The first appellate Court granted decree for removal of obstruction closing the window of the plaintiffs kitchen and store.
(3.) The learned counsel for the appellant vehemently submitted that admittedly there are two doors for the kitchen with one ventilator of 2 ft. x 2 ft. in addition to the window in dispute. In view of the above facts itself, it is clear that there cannot be any actionable cause for the plaintiff to file the suit for getting the decree for mandatory injunction as the plaintiff is still having sufficient way for air and light in the kitchen and store. Learned counsel for the appellant submits that the diminution of air and light must be of such extent which makes the property inhabitable or at least there must be a substantial diminution of air and light. It is also submitted that mere slight loss of air and light is not sufficient for getting the decree for mandatory injunction on the ground of easement. Learned counsel for the appellant relies upon the judgment of the Hon'ble Supreme Court in the case of Chapsibhai Dhanjibhai Dand v. Purushottam, AIR 1971 SC 1878 wherein the Hon'ble Apex Court, after considering Section 33 of the Easements Act, 1882, observed that under the explanation 2 read with explanation 1 to Section 33 where the disturbance pertains to the right of free passage of air and light passing through the openings to the house, no damage is substantial unless the interference materially diminishes the value of demanding heritage. The Hon'ble Supreme Court further observed that where the disturbance is to the right of free passes of air, damages is substantial, if it interferes materially with physical comfort of the plaintiff. Learned counsel for the appellant further relies upon the judgment of this Court in the case of Suzan Mal v. Bhanwarlal, 1984 WLN (UC) 195 wherein this Court held that it is obligatory for the plaintiff to prove substantial damage. In this case, there was a space of 2'2" in width in between the plaintiffs house and the staircase of the defendant. Therefore, this Court held that flow of air and light through apertures cannot be said to have been totally stopped. This act was found of reduction or diminution in the light and air but not of substantial damage.;