The central legal point established in the judgment is the requirement for substantial damage in the case of disturbance of easementary rights and the need for interference to amount to a nuisance. The sufficiency of light and air for comfortable use and enjoyment of the property was also emphasized.

( 1 ) THE plaintiff has preferred this appeal against the judgment and decree of the Civil Judge of mangalore, S. K. in Appeal Suit No. 33 of 1965 modifying the decree made by the Munsiff of mangalore in O. S. 131 of 1962. The defendant has filed cross-objections questioning the correctness of the decree made by the lower court.

( 2 ) THE plaintiff and the defendant are owners of neighbouring properties. The plaintiff in the first instance sought for a permanent injunction restraining the defendant from putting up any building without keeping an open space or at least 4 feet at the northern edge of his plot; and from disturbing or interfering with the right of the plaintiff to enjoy sufficient quantity of light and air through the windows of his building opening towards the defendant's premises.

( 3 ) LATER, as the defendant had put up the structure on his premises, the plaintiff was permitted to amend the plaint by praying for a mandatory injunction directing the defendant to remove any superstructure put up within 4ft. of the northern edge of the defendant's premises. The trial court framed several issues in relation to the relief of permanent injunction. The learned Munsiff however decreed the suit as prayed for with costs. It may be mentioned that the trial court granted the mandatory injunction even though no issue in regard to it is framed. The learned Civil Judge, on appeal, set out the points for consideration and the fourth point sets out the following: " (iv) whether the defendant is liable for the demolition of the entire building or a portion of it?" the learned Civil Judge dismissed the appeal modifying the decree of the trial court directing that a space of 4ft. is to be left open between the window W1 and the building of the defendant, and to do so the defendant should remove a portion of his building. The plaintiff who was aggrieved by this portion of the decree preferred this second appeal, while the defendant has preferred cross-objections questioning the correctness of the entire decree.

( 4 ) IT is to be observed that both the courts have failed to consider the important question that arises in a case where the plaintiff seeks to exercise his easementary right for access to light and air from the opening. A reference may be made in this connection to explanations II and III of section 83 of the Easements Act. They provide:

"explanation II: where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first explanation, of interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. Explanation III: where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning or this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health. "

My attention is invited to the decision of the Patna High Court reported in AIR1959 Pat 517 , wherein the High Court has taken the view that:

"there is no infringement of the right, unless what is done amounts to nuisance. In other words, the right of the owner or occupier of a dominant tenement to light or air, is not to be molested by what would be equivalent to a nuisance. There must, therefore, be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action and that as long as he receives through the windows of his dwelling-house, or in the case of a particular room in his dwelling-house, through the windows of that room, an amount of light or air, which is sufficient according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling-house, or of the room

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