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Andhra Pradesh High Court
Judges : S.OBUL REDDY, VISWANATHA SASTRY
M.Nageswara Rao - Appellant
Versus
S.Ramachandra Rao - Respondent
Decided On : 07-13-72
EASEMENTS - LIGHT AND AIR - JOINT WALL - NO EASEMENT IN RESPECT OF LIGHT AND AIR THROUGH WINDOWS IN A JOINT WALL - AGREEMENT BETWEEN PARTIES - DEFENDANT HAS RIGHT TO CONSTRUCT ON HIS TERRACE AN UPSTAIR WHICH MAY INCIDENTALLY AFFECT THE RIGHT OF THE PLAINTIFF.
Fact of the Case:
Plaintiff filed a suit for injunction restraining the defendant from raising any construction on his terraced building bearing No. 5/123, which interferes with the free passage of light and air through the windows (marked A and B in the rough sketch) of the plaint plan. The defendant contested the suit stating that the plaintiff opened the two ventilators in the upstairs portion without his knowledge, that on protest he agreed to remove the same, that the plaintiff has no easementary right to have the two windows there in order to receive light and air as claimed by him. He also stated that by virtue of an agreement of the year 1930 the boundary wall between the house of plaintiff and the defendant is the joint wall, and that the defendant had a right to construct a building over the said wall.
Finding of the Court:
The court held that there can be no easement in respect of light and air through windows in a joint wall, and that the agreement between the parties was true, valid and binding on the plaintiff, and that he cannot prevent the defendant by an injunction from constructing any superstructure basing it on the joint wall in question.
Issues: 1. Whether the two windows in the northern wall of the house of the plaintiff have been in existence since over the prescribed period? 2. Whether the agreement dated 17-12-1930 is true and binding on the plaintiff and is enforceable? 3. Whether the wall in question is a joint wall? 4. Whether the plaintiff is entitled to receive light and air through the two windows? 5. To what relief?
Ratio Decidendi: 1. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do some things, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. 2. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; and the land on which the liability is imposed is called the servant heritage, and the owner or occupier thereof the servant owner. 3. Where the property belongs jointly to two persons, there cannot be dominant and servant ownership in respect of that property. 4. Also where there is fusion of the dominant and servant ownership in the same person, an easement, if any, gets extinguished. 5. The mere putting forward of a claim of ownership in legal proceedings is not conclusive against a right of easement, but if the acts done by the person claiming easement in respect of the property during the statutory period are only referable to a purported character of owner they cannot validate a subsequent claim to an easement in respect of the property.
Final Decision: The court allowed the appeal and dismissed the suit of the plaintiff.
( 1 ) DEFENDANT is the appellant in this L. P. A. Which is preferred against the judgment of our learned brother Ramachandra Rao, J. , in Second Appeal No. 368 of 1970, wherein leave was granted.
( 2 ) THE facts giving rise to this litigation are stated below ; The respondent is the owner of house bearing No. 5/122 situated in the main road, 5th ward of Rajahmundry Municipality. The appellant defendant is the owner of the house bearing door No. 5/123 and it adjoins the plaintiffs house on the north. The terraced house of the defendant was constructed in about 1958. In 1959 when the defendant attempted to raise walls with a view to construct a first-floor on the said house, the plaintiff gave him a notice on 28-9-1959 raising an objection to the effect that the proposed construction would block the free flow of air and light through the only ventilators facing north to the house of the plaintiff, marked in red lines in the rough plan. According to the plaintiffs case the defendant stopped construction obstructs the free flow of light and air through the two ventilators the plaintiff stated that it would work hardship and irreparable damage to him. He therefore filed O. S. 457 of 1966 on the file of the Second Additional Munsif Magistrate Rajahmundry for an injunction restraining the defendant from raising any construction on his terraced building bearing No. 5/123, which interferes with the free passage of light and air through the windows (marked A and B in the rough sketch) of the plaint plan.
( 3 ) THE defendant contested the suit stating that the plaintiff opened the two ventilators in the upstairs portion without his knowledge, that on protest he agreed to remove the same, that the plaintiff has no ease mentary right to have the two windows there in order to receive light and air as claimed by him. He also stated that by virtue of an agreement of the year 1930 the boundary wall between the house of plaintiff and the defendant is the joint wall, and that the defendant had aright to construct a building over the said wall. As per that agreement the wall, in which the plaintiff opened two windows, is the joint wall and as such he has no rights whatsoever in it and much less to claim easementary rights for light and sir through the said windows. He therefore pleaded that no injunction could be granted against him.
( 4 ) THE plaintiff filed a rejoinder stating that the agreement referred to in the written statement is not valid and binding on the plaintiff and that even assuming without conceding that the wall in question is a joint wall, the plaintiff perfected his title to it by adverse possession and enjoyment. He also stated that the claim of the defendant based on that agreement is barred by limitation, by reason of the defendant not enforcing the said agreement within the period of limitation, at any rate within three years from 10-8-1959 when the plaintiff disputed the right of the defendant to raise any construction affecting the plaintiffs right of easement.
( 5 ) ON the above pleadings the following issues were framed. 1. Whether the two windows in the northern wall of the house of the plaintiff have been in existence since over the prescribed period? 2. Whether the agreement dated 17-12-1930 is true and binding on the plaintiff and is enforceable? 3. Whether the wall in question is a joint wall? 4. Whether the plaintiff is entitled to receive light and air through the two windows? 5. To what relief?
( 6 ) ON issue No. 1. The trial Court held that the two windows in the northern wall of the house of the plaintiff have been in existence ever since 1930 or 1931. On issue No. 2 the trial Court found that the agreement is true and binding upon the plaintiff and that it is enforceable. On issue No. 3, it found that the wall in question is a joint wall. On issue No 4, the trial Court found, relying upon a decision of Lahore High Court, that the plaintiff can claim easementary right to receive light and
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