Grant of mandatory injunction when called for.

Kailasam, J.-‘The plaintiff in a suit for a mandatory injunction in respect of a construction of the first floor of the defendant’s house is the appellant in the Letters Patent Appeal. The plaintiff pleaded that on the southern wall of the first floor there is a big window with a glass ventilator of about 6’ that is 4’ window with 3 doors and about a 2ft glass ventilator 4½ ft. breadth opening into the tiled portion of the defendant’s premises and four other ventilators of about 2½ ft X 2 ft each on the southern side in the first floor of the said premises opening into the open terrace of the defendant’s house. The relief was claimed, on the ground that the defendant had constructed a wall near the southern win- dow with a glass ventilator which obstructed the free flow of air and light through the said window. The defendant denied that there was any obstraction to the facilities of light and air to which the plaintiff was entitled and therefore contended that the plaintiff was not entitled to any relief.

2. The trial Court found that there was an infringement of the plaintiff’s right and granted a decree as prayed for. But the learned Principal Judge of the City Civil Court partly allowed the appeal of the defendant and granted a permanent injunction restraining the defendant from raising any constructions in his first floor in a manner which would.

interfere with the plaintiff’s easement rights to receive air and light through the four ventilators which were embedded in the plaintiff’s southern wall and which were marked in the plan Exhibit B-3. He directed the defendant to pay the plaintiff a sum of Rs. 200 with interest at six per cent per annum from the date of suit till the date of payment, as damages for having blocked the window W-I completely.

3. The matter was taken in Second Appeal by the plaintiff against the order refusing mandatory injunction so far as the construction of the window was concerned. The learned Judge after referring to the observation of the appellate court that inspite of the construction the plaintiff would get sufficient light in all seasons and that the other windows were sufficient for comfortable habitation of the bed-room, observed that most people would like to get breeze from the southern side and to put up windows on the southern wall for that purpose. The learned Judge held that the owner acquired a valuable easementary right and he was entitled to damages. Though the learned Judge found that the sum of Rs.200. awarded as damages was low, he did not determine the quantum as he was granting leave to appeal.

4. The question that arises in this Letters Patent Appeal is whether the right of the plaintiff to light and air has been in any way infringed and whether he is entitled to the relief of injunction or damages. The position of the window and the quantity of light and air which the plaintiff is receiving at present can well be stated by quoting the following observations of the learned Principal Judge of the City Civil Court, who inspected the premises and made a report:

"The window W.I has now been completely blocked and the appellant (defendant) had recently put up rooms south of the said window. The entire hall of which the bed-room forms a portion has got 7 big windows W. 2 to W.8 with Venetian shutters fitted to them for regulating air and light and their dimensions are set out in the plan Exhibit B-3. Windows W-2 to W-6 are in the bed-room and windows W.7 and W.8 are in the northern portion. The bed-room is completely shut off from the northern portion by a wooden portion and does not have the benefit of light and air through the windows W.7 and W.8 When I inspected the premises on 22rd January,. 1964 at about 2-30 p. m. I, found windows W.2 to W.6 completely closed. It is clear that if these windows remain completely closed there will not be sufficient light and air for the comfortable enjoyment of the bed-room. On my direction, windows W.2 to W.6 were opened completely and the room be

Click Here to Read the rest of this document