The main legal point established in the judgment is that any act likely to injure the plaintiff by affecting the evidence of the easement constitutes substantial damage under Section 33 of the Indian Easements Act, and damages may be awarded under Section 35 even in the absence of substantial actual damage.

Somayya, J.

1. This is an appeal by the plaintiff against the judgment of the Principal City Civil Judge at Madras in O.S. No. 555 of 1935. The suit is for a mandatory injunction directing the defendants to remove the construction on their property so far as is necessary to restore to the plaintiff the free use of her windows and the quantity of light and air that has been coming through them undiminished and for a permanent, injunction restraining them from erecting any construction so as to interfere with plaintiffs use of her windows.

2. The plaintiff is the owner of a storied house No. 420 situated on the western row of the Triplicane High Road facing the east. The defendants are owners of house No. 419 situated next south of the plaintiffs house. The plaintiff alleges that the southern wall on the first floor of her house facing the defendants house, contains three windows which have been in existence for over 50 years, that she had been enjoying free light and air through those windows for over 50 years, that the defendants began, about a month or two prior to suit, to construct a first floor on their house which consisted uptill then of only a ground-floor, that the defendants in so doing put up a wall by the side of the plaintiffs southern wall and as a result completely blocked the easternmost of the three windows, that the defendants obstruction causes serious danger to the inmates of the plaintiffs house and that the value of her property is thereby diminished. The defendants deny the existence of the windows for over the statutory period and contend that the plaintiff suffers no substantial privation of light and air and that their act does not amount to an actionable nuisance.

3. The trial Judge found that the three windows were in existence for over the statutory period. It may here be noted that the learned Judge made a personal inspection of the premises on several occasions. He held on the evidence adduced, that there is no such diminution of light and air as to amount to a nuisance. As regards the westernmost window there is admittedly no obstruction. With respect to the middle window the Judge found that by reason of the roof of the defendants hanging over a portion of it there is no such diminution as to cause serious discomfort or to render the plaintiffs house uninhabitable. As for the easternmost window it is not disputed that it is completely blocked up. But the learned Judge found that the plaintiff receives sufficient light and air from other sources and holds that even if the easternmost window is closed up, the plaintiff cannot succeed as there is no substantial damage.

4. I agree with the findings of the lower Court. But the real question to be decided is whether under these circumstances the plaintiff has any cause of action against the defendants. Section 33 of the Indian Easements Act (V of 1882) which deals with disturbance of easements, runs as follows:

33. The owner of any interest in the dominant heritage, or the occupier of such heritage may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto: provided that the disturbance has actually caused substantial damage to the plaintiff.

Explanation I. - The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by...is substantial damage within the meaning of this section.

Explanation II. - Where the easement disturbed is a right to the free passage of light...no damage is substantial within the meaning of this section, unless it falls within the first explanation or....

5. Explanation II above says that in respect of an easement of light, damage is substantial if it falls within Explanation I which provides that the doing of any act likely to injure by affecting the evidence of easement is substantial damage. The principle underlying Explanation I is that any act of the defendant which affects the evidence of easement is enough to sustain an action though th