1964 Supreme(Bom) 10
IN THE HIGH COURT OF BOMBAY
Naik V.A.
Appellants: Chapsibhai Dhanjibhai
Vs.
Respondent: Purshottam Motilal
Appeal Nos. 217 and 218 of 1961
Decided On: 04.03.1964
Counsels:
For Appellant/Petitioner/Plaintiff: P.P. Deo and R.R. Dandige, Advs.
For Respondents/Defendant: S.N. Kherdekar, Adv.
Headnote:
TRANSFER OF PROPERTY ACT, 1882 - SECTION 108(D) - LEASE - INTERPRETATION - PERMANENT LEASE - ACCESSION - ADVERSE POSSESSION - EASEMENT - NUISANCE.
Fact of the Case:
The plaintiff, a lessee, filed a suit against the defendant, the lessor, for a declaration that a strip of land was an accession to his leasehold property, for a permanent injunction restraining the defendant from interfering with his right to enjoy free and uninterrupted light and air from the windows, and for damages for nuisance caused by the defendant's oil mill. The defendant resisted the claim on various grounds, including that the lease was not a permanent lease but a lease for a fixed period, that the plaintiff had not acquired any right of easement, and that no nuisance was caused to the plaintiff.
Finding of the Court:
The court held that the lease was a permanent lease, that the plaintiff had acquired the strip of land as an accession to his leasehold property by adverse possession, that the plaintiff had not acquired any right of easement to light and air, and that no nuisance was caused to the plaintiff by the defendant's oil mill.
Issues: 1. Whether the lease was a permanent lease or a lease for a fixed period? 2. Whether the plaintiff had acquired the strip of land as an accession to his leasehold property by adverse possession? 3. Whether the plaintiff had acquired any right of easement to light and air? 4. Whether any nuisance was caused to the plaintiff by the defendant's oil mill?
Ratio Decidendi: 1. The court interpreted the terms of the lease and the surrounding circumstances to determine whether the lease was a permanent lease or a lease for a fixed period. The court held that the lease was a permanent lease because it was for building purposes, the lessee was given the option to continue on the premises so long as he paid rent, and the lease was transferable and heritable. 2. The court held that the plaintiff had acquired the strip of land as an accession to his leasehold property by adverse possession because he had been in possession of the strip for over twelve years and had used it for various purposes, such as a passage, a drain, and a place to project the eaves of his roof. 3. The court held that the plaintiff had not acquired any right of easement to light and air because he had not enjoyed the right with the consciousness that the windows opened against the land of another. 4. The court held that no nuisance was caused to the plaintiff by the defendant's oil mill because the noise, smell, and vibrations from the mill were not of such a magnitude as to cause discomfort to the plaintiff and his family.
Final Decision: The court dismissed the plaintiff's suit in its entirety.
JUDGMENT - 1. These two appeals can be disposed of by common judgment for the sake of convenience since they involve some facts which are common to both the cases. Second Appeal No. 217 of 1961 has arisen out of a suit filed by Chapsibhai Dhanjibhai Jain against Purusnottam son of Motilal Jhunjhunwala. Second Appeal No. 218 of 1961 has arisen out of a suit filed by Purushotlam Motilal Jhunjhunwala against Chapsibhai Dhanjibhai Jain. Throughout the judgment, Chapsibhai will be referred to as the plaintiff and Purushottam will be referred to as the defendant The fact underlying this litigation may be briefly stated as follows: There is an open piece of land belonging to the predecessors-in-title of the defendant at Khamgaon, on 5-5-1906 the plaintiffs father took the easternmost portion of this land, measuring 26 feet east-west and 225 feet north-south on lease and passed a kabuliyat in 5-5-1906 in respect of the same. In 1906 the plaintiffs father constructed a building which he started using as a shop in the northernmost portion of the plot taken on lease by him. Again, in 1909 he built a godown in the southern-most portion. In 1921, the plaintiffs father put up a three storied structure in the middle of the plot, that is to say, between the two buildings already constructed by him and started residing therein. There was a well situate to the west of the northernmost strip of the plot leased to the plaintiffs father. The portion to the west of the plot given on lease to the plaintiffs father was lying vacant for a long time. It appears that the defendants father put up a small structure in the northernmost portion of the land belonging to him to the west of the well, but the year or the construction has not come on record. It is, however, in evidence that in about the year 1954 the defendant had installed a printing Press in the building. Even after the construction of the aforesaid building, the remaining portion to the south of the defendants plot continued to remain vacant and unoccupied. It is the case for the plaintiff that he used a four feet strip lying to the west or the plot given to him on lease as a passage. The plaintiff has opened six windows on the ground floor and three windows on the first floor of his residential building which have an opening to the west. It appears that, in about 1929, the entire land was measured and the portion leased out to the plaintiff was given plot No. 94 whereas the portion remaining with the defendant was given plot No. 93. The measurement appears to have been based en-the area mentioned in the lease deed. The plaintiff has alleged that, in 1954, the defendant started constructing a building as a result of which five of the windows on the ground-floor and three on the first floor of his building have been blocked. According to the plaintiff, he has acquired a right in the nature of easement of taking light and air through these windows by user for over the statutory period. It is further his case that the roof of his building projects to a distance of about 2 1/2 feet towards the west and that the rain water falls on plot No. 93 from the eaves of the roof. It is also his case that the has put up a pakka gutter from point N to O, and that further to the south he has put up a kaccha drain for the passage of rain water, as also the water used by the residents of the building. According to the plaintiff, the defendants building almost touches the western wall of his own building and, in that way, not only obstructs the free access of light and air to the windows but also affects the drain. The plaintiff has appended a map along with the plaint. He has described the four feet strip lying to the west of his house by the letters PNHORSTMP. According to the case originally made out in the plaint, the plaintiff claimed a right to this strip by accession to his leasehold property. Later on, he amended the plaint and stated that this strip is a part of the property given to him on lease. The p
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