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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RAJU
A.V. Kuppuswamy Iyer and Others - Appellant
Versus
S. K. Subramanian and Others - Respondents
S.A. No. 1397 of 1993
Decided On : 07 February 1997
EASEMENTS ACT - RIGHT TO LIGHT AND AIR - ACQUISITION BY PRESCRIPTION - SUBSTANTIAL DAMAGE - INJUNCTION - [SECTION 15, 28, 33, 35]
Fact of the Case:
Plaintiffs filed a suit for a declaration that they have acquired an easement right of light and air through windows W1 and W3 by prescription and for a mandatory injunction restraining the defendant from interfering with the enjoyment of the easement right by putting up any wall or construction. The defendant contended that the windows were permanently closed and that he had the right to construct a wall on his own property.
Finding of the Court:
The trial court dismissed the suit, holding that the plaintiffs had not acquired the easement right of light and air through the suit windows. The first appellate court reversed the trial court's decision and granted the injunction as prayed for by the plaintiffs. On second appeal, the High Court held that the plaintiffs had not established a substantial infringement of their right to light and air and that the first appellate court had erred in granting the injunction.
Issues: 1. Whether the plaintiffs had acquired an easement right of light and air through the suit windows by prescription. 2. Whether the defendant's construction would cause substantial damage to the plaintiffs' right to light and air. 3. Whether the plaintiffs were entitled to a mandatory injunction restraining the defendant from constructing the wall.
Ratio Decidendi: 1. The right to light and air through windows in one's own wall facing another man's land is limited to the amount of light and air that has been accustomed to enter. 2. An action for damages or injunction for infringement of the right to light and air lies only on complaint of material injury. 3. The curtailment of the right must be proved to be so substantial as to render comfortable living or use of the residence impossible, judged by ordinary notions. 4. In the present case, the plaintiffs had not established that the defendant's construction would cause substantial damage to their right to light and air. The windows in question were permanently closed and the plaintiffs had other sources of light and air.
Final Decision: The second appeal was allowed, the judgment and decree of the lower appellate court were set aside, and that of the trial court was restored. The cross objections were dismissed.
This Second Appeal memo of cross objection coming on for hearing on this day, the Court delivered the following judgment :-
The defendant in O.S. No. 1238 of 1979 on the file of the District Munsif, Madurai Town, who succeeded before the learned Trial Judge, but lost before the first appellate Court, has filed the above second appeal.
2. During the pendency of the appeal, the sole appellant died and in his place, appellants 2 to 8, his legal representatives have been brought on record to prosecute the appeal further.
3. The suit O.S. No. 1238 of 1979 was filed by respondents 1 to 3 for a declaration that the plaintiffs have acquired easementary right of light and air, through the windows-W1, W3 by prescription and consequently, for a mandatory injunction restraining the defendant and his men from in any way interfering with the enjoyment of the easementary right of light and air through the said widows by putting up any wall or building or construction and thereby preventing the free flow of light and air.
4. The case of the plaintiffs before the trial Court was that the plaintiffs are the owners of door No. 47, Lakshmipuram Second Street and the defendant is the owner of door No. 46, Lakshmipuram Second Street. On the plaintiffs' house, there are windows W1 to W2. with zinc sheets over it, as shown in the rough sketch filed along with the plaint and that the said three windows were said to be in existence from time immemorial and therefore, the plaintiffs have acquired the easementary right of light and air by prescription. The house of the defendant which is on the eastern side to the plaintiff's house, is a tiled structure and the defendant has no western wall to his building and the three windows W1 to W3 are situated in a wall in the plaintiffs' house and except them, there are no other sources of light and air for the plaintiffs' house and if the three windows are blocked, light and air does not pass through for the plaintiffs' house and the plaintiffs' house will become unfit for human habitation. On the allegation that the defendant has been threatening to put up a wall on the western side of his property, i.e., near the eastern wall of the plaintiffs' house and stocked bricks, cement and stones, to raise the wall, the plaintiffs have filed the suit for the reliefs noticed supra.
5. The defendant on entering appearance, filed a written statement, contending that he has got his western wall in half of the portion of this building and in the rest of the portion stone pillars are planted, touching the eastern wall of the plaintiffs' house and supporting his roofing on that. The plaintiffs have other source of light and air to their hall, apart from W1 and W2 windows and the Commissioner has also found that there are six other windows other than W1 and W2. Further, there is a doorway adjoining the room and light and air coming from MUTRAM are sufficient for plaintiffs' comfortable enjoyment of the room. The plantiffs were said to be not getting light and air through the windows W1 and W2 since they were permanently closed and zinc sheets were put up with screws fixed and the said two windows had never been used by the plaintiffs. They were said to have been closed permanently by the plaintiffs and their predecessors in interest and consequently the defendant is entitled to put up construction in his eastern wall in his own space will the end of the eastern wall of the plaintiffs. The western wall that may be put up by the defendant, even if it blocked W1 and W2 windows that will not result in any hardship or loss of air and light, as light and air pass through other openings and other widows of the plaintiffs' house and the contention to the contra that the hall will become unfit for human habitation, is false. The further allegation of the plaintiffs that light and air passing through W1 and W2 windows for the past 50 years, was denied as false and the plaintiffs, according to the defendant, cannot claim to have pr
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