Enjoyment of light and air in pursuance of an agreement, where the right is not granted as an easement, prevents the acquisition of a prescriptive right under Section 15 of the Indian Easements Act, 1882.

Judgement

Appeal from a decree of the High Court (Feb. 27, 1896) reversing a decree of Farran J. (March 15, 1895), which had been in favour of the appellant for Rs.4500 damages.

The facts are stated in the judgment of their Lordships.

The suit was brought in 1894 for a decree declaring the appellant to be entitled to free and uninterrupted access of light and air through the windows on the south and west sides of his house as the same were enjoyed by him before the respondent began to take down and rebuild his house, and complaining of the interruption of such right which would be caused by the new building of the respondent, and praying for an injunction, and for further and other relief. The respond ent in his written statement set up that by an arrangement between his predecessor in title and the predecessor in title of the appellant he was entitled then to erect upon the site where he was then

Law. Rep. 26 Ind. App. 184 ( 1898- 1899) Sultan Nawaz Jung V. Rustumji Nanabhoy Byramji Jijibhoy

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erecting his said house any building or structure whatsoever, without regard to the access of light and air to the windows in the south wall of the appellants said house, and that the appellant had no right to raise any objection thereto.

In his letter to the appellant of November 2, 1871, the respondent said " In the course of nearly a year and a half that has now elapsed, I have often written to you to the effect as follows There is the property of the said jamadar in the vicinity of ray house, situate at Hornby Row, and the windows on the south (side) thereof have been made to open projecting over my pro perty (which was not all the case before). I asked for a writing from you making (proper) arrangements in the matter, but you [have] not as yet sent any satisfactory answer in respect thereof, and you often wrote, and you often communicated to me verbally the same answer to the effect that the jamadar was to come, and that you would settle the same when he comes, but nothing has been done in the matter. I therefore by this give you final notice that, should you fail to come to a satisfactory arrangement as regards me (in the matter of these windows) within fifteen days of this date, I will, without delay, by legal steps at once close your windows and kanframes " (? weather boards), " and as to whatever expenses may be incurred by me in the matter thereof, you are responsible for the whole of the same, and you are bound to be answerable for the same. I therefore think that now you will not make the least delay in the matter. Relying upon your word, I waited for so many months, but it cannot be done hereafter. Do you please note the same. Please reply to this letter immediately. This is the sole representation."

In his letter of July 17, 1872, he said "I am extremely sorry to write that, although you are a respectable man and merchant, the promise that you very often gave to the effect that you would write to the jamadar, in the matter of the house belonging to Jamadar Awad bin Omar, situate in the vicinity of my house in the Fort, and the windows and kanframes " (? weather board) whereof open over my property, and get (him) to come to an arrangement with me. But as to the same you have not up to this day fulfilled your promise, and I took you to be a respectable man, and put up with the same for nearly two years. But now I have at length got tired, and am obliged to write this strong letter. The whole blame in respect thereof is on you. Now I have written this last letter, and hope that without the slightest further delay, you will at once pass in writing and deliver (to me) the instrument which is required (to be passed) in the matter of the windows of your house, and should you perhaps fail to do so within fifteen days, I will take such steps as may be proper according to law, and recover from you all the loss and costs, &c., in respect of the same.

"Even now, I again request that you will surely get the work done, and, I hope, do