The right to light and air is not measured by the amount enjoyed during the period of prescription but by the amount reasonably necessary for the comfortable habitation of the house.

Raj Kishore Prasad, J.

1. This is an appeal on behalf of the defendants from that part of the judgment of the learned Additional Subordinate judge by which he has affirmed the finding of the learned trial Judge, restraining the defendant-appellants from building their house more than seventeen feet high or in such a way as to obstruct in any way the passage of air or light to the plaintiffs in the second storey of their house.

2. The only point taken in the present appeal by Mr. R.S. Chatterji, on behalf of the appellants, was that as there is a compound wall between the house of the plaintiffs, standing on plot 1390, and, the house constructed by the defendants on plots 1389, 1387 and a portion of plot 1386, it cannot be said that by construction of the defendants house, the plaintiffs will not get so much of the use of access of light or air over the defendants premises as is reasonably necessary for the comfortable habitation of their premises.

3. It is necessary to state some relevant facts for the decision of the point raised in this Court.

4. In 1922 the plaintiffs purchased plot 1390 in suit, as also plot 1391 and a portion of plot 1392. The defendants purchased, between 1946 to 1949, plots 1387 and 1389, which are in suit, and, some other plots, with which we are not concerned in the present appeal. Admittedly the house of the plaintiffs stands on plot 1390 and the defendants are constructing their new house on plots 1389, 1387 and a portion of plot 1386.

5. According to the plaintiffs, they had acquired a right of easement by prescription to get uninterrupted use of light and air through their windows in the northern block of the second storey of their house standing on plot 1390, through the defendants plots 1387 and 1389, by having enjoyed the same for more than twenty years. This led to the controversy as to when the plaintiffs house was constructed. According to the plaintiffs, it was constructed long before twenty years, but, according to the defendants, it was constructed only about ten years back. On this question, the concurrent finding, which has not been challenged, of both the courts below is that the plaintiffs house was constructed twenty-five years ago.

In that view, therefore, both the courts below also concurrently found, which has also not been challenged, that the plaintiffs had acquired the right of easement for use of unobstructed light and air in the second storey of their house 17 feet high from plots 1387 and 1389 through their northern windows by prescription. The learned Judge of the court below, however, after having found that, has consequently restrained the defendants from building their house more than seventeen feet high or in such a way as to obstruct in any way the passage of air or light to the plaintiffs.

6. The learned Additional Subordinate Judge also found, in agreement with the trial Judge, that "it is unrefuted that there is a compound wall to the north of the house of the plaintiffs" and that this "boundary wall was constructed much subsequent to the construction of the plaintiffs house." Relying on this finding Mr. Chatterji put forward his argument stated earlier.

7. In this connection Mr. Chatterji relied on a Bench decision of the Calcutta High Court in Sarojini Devi V/s. Krista Lal Haldar, 36 Cal LJ 406: (AIR 1923 Cal 256); and on the decision of a learned Single Judge, Trevelyan, J., of the same Court in Delhi and London Bank Ltd. V/s. Ram Lall Dutt ILR 14 Cal 839 and also on a decision of the Privy Council in Paul V/s. Robson ILR 42 Cal 46: (AIR 19.14 PC 45). On the basis of the above decisions, Mr. Chatterji contended that if the defendants building would have been parallel to and at the side of the building of the plaintiffs, leaving no space whatsoever between them, then certainly the plaintiffs light and air would have been closed up by the nigh building of the defendants at the sides, but here, so ran his argument there is no circumstance of that kind.

In th