Judgement

Appeal from a judgment and decree of the High Court; (August 1, 1911) affirming a judgment and decree of that Court in its ordinary original jurisdiction (March 29, 1911).

The suit was brought by the appellants claiming an injunction or damages for an alleged interference with their rights to access of light and air in respect of a freehold house and premises known as 7, Esplanade East, in Calcutta. The house, of which the plaintiffs were life tenants, had been used as business premises in its two lower floors, and the top floor as a residential flat. It was admitted that the appellants had acquired by pre scription rights to air and light in respect of the windows on the east side of the house, and it was alleged by them that those rights were interfered with by a new building which the respondents were erecting.

The trial took place before Stephen J. and lasted from February 9, 1911, until March 16, 1911, much evidence being adduced upon either side. On March 29, 1911, the learned judge delivered judgment dismissing the suit. He found that the light coming to the appellants premises from the east had been obstructed by the respondents new building, but that, as far as the ground floor and middle floor were concerned, a sufficient quantity of light formerly enjoyed was left for the purpose of carrying on the business of a shop or office. As regards the top flo6r, he found that no nuisance was caused by the obstruction of light. He also found that no nuisance was caused by the obstruction of air, and that the plaintiffs had failed to prove any depreciation in the value of the premises.

The appellants appealed to the High Court in its appellate jurisdiction. That Court (Jenkins C.J. arid Woodroffe J.) delivered judgment on August 1, 1911, dismissing the appeal. The learned Chief Justice, with whose judgment Woodroffe J. agreed, affirmed the findings of fact of the trial judge.

In reference to the divergence of judicial opinion, which had been argued existed as to whether the quantity of light previously enjoyed was, since the decision in Colls v. Home and Colonial Stores ([ 1904] A C. 179.), to be considered, the learned Chief Justice said " I doubt whether there is any real conflict and it appears to me that the difference of expression on which the argument rests may be fairly referred to the difference in the facts or conditions under review, and the considerations that particularly engaged the attention of those by whom these divergent expressions were severally used. No one, I imagine, would suggest that in a suit for disturbance of light the character of the previous enjoyment could be wholly disregarded nuisance implies comparison, and the previous state of affairs is a necessary standard for that comparison. And this must be so, as a general rule, though, after an investigation of a particular case, it may appear that the conditions of a nuisance have not been established. In every case, therefore, that comes before the Court the previous enjoyment is proved or sought to be proved, and that is an element which must, from the nature of things, be present in the mind of the Court. But this is a very different thing from saying that the previous enjoyment furnishes the decisive measure of the unlawful hurt or annoyance. "The case in the High Court is reported at I. L. R. 89 Calc. 59.

De Gruyther, K.C., and Dunne, for the respondents. As a preliminary point, there are concurrent findings of fact that no nuisance was caused by the obstruction complained of. That finding disposes of the case Colls v. Home and Colonial Stores. ([ 1904] A. C. 179.) Both under the Code of Civil Procedure, 1908, s. 110, and according to the practice of the Board, the appeal should be dismissed Karuppanam Servai v. Srinavasan Chetti (( 1901) L. R. 29 Ind. Ap. 38.); Sajjad Husain v. Wazir All Khan. (( 1912) L. R. 39 Ind. Ap. 156.)

Upjohn, K.C., Hudson, K.C., and Vernon, for the appellants. The Code of Civil Procedure, 1908, s. 110, and th