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PUNJAB & HARYANA HIGH COURT
H.R.Khanna, J.
Devinder Kumar
Versus
Chatro Devi
Second Appeal No. 83 of 1958,
Decided On : MARCH 14, 1966
EASEMENT - RIGHT TO LIGHT AND AIR - DISTURBANCE - SUBSTANTIAL DAMAGE - LOCALITY AND SURROUNDINGS - INTERPRETATION OF SECTIONS 28, 33, AND 35 OF THE EASEMENTS ACT, 1882.
Fact of the Case:
Plaintiff-appellant Davinder Kumar Jain filed a suit against defendant-respondent Shrimati Chatro Devi, alleging obstruction of light and air through two windows in his house due to the respondent's construction activities. The trial court found that the appellant had acquired an easement by prescription and grant for the window on the third storey and by grant for the window on the second storey. However, it declined to grant mandatory injunction for the demolition of the roof and walls in front of the second-storey window, finding that the obstruction did not cause substantial damage to the appellant's property. The lower appellate court upheld the trial court's decision.
Finding of the Court:
The High Court held that the lower appellate court's decision was justified. It found that the appellant had not suffered substantial damage as a result of the respondent's construction, considering factors such as the existence of other windows in the room, the locality and surroundings of the property, and the ordinary notions of mankind regarding light and air.
Issues: 1. Whether the appellant had acquired an easement of light and air through the windows in question by prescription or grant. 2. Whether the respondent's construction activities caused substantial damage to the appellant's property, entitling him to mandatory injunction for the demolition of the roof and walls.
Ratio Decidendi: 1. The court interpreted Section 28 of the Easements Act, 1882, along with Sections 33 and 35, to determine the extent of an easement and the conditions for substantial damage. 2. The court held that substantial damage, in the context of disturbance of an easement, requires proof of actual and material diminution of the value of the dominant heritage or interference with the physical comfort or accustomed business of the plaintiff. 3. The court considered the locality and surroundings of the property, including the densely congested nature of the lane where the houses were situated, in assessing the quantum of light and air to which the appellant was entitled.
Final Decision: The High Court dismissed the appeal, holding that the lower appellate court's decision was justified. The appellant was not entitled to mandatory injunction for the demolition of the roof and walls in front of the second-storey window, as the respondent's construction did not cause substantial damage to his property.
H.R.Khanna, J.
1. This regular second appeal filed by Davinder Kumar Jain plaintiff is directed against the judgment of learned Additional Senior Subordinate Judge, Delhi, affirming on appeal the decision of the trial Court.
2. The brief facts of the case are that Davinder Kumar Jain appellant and Shrimati Chatro Devi respondent own adjoining houses in Mandirwali Lane, Subzimandi, Delhi. The dispute between them relates to the access of light and air through the two windows in the appellants house, one on the second storey and the other oh the third storey. The present suit was filed by the appellant on the allegation that he had a right of casement for access of light and air through the two windows against the defendant and had been enjoying the use of light and air peaceably and without interruption as of right in the past. So far as the right of easement in the window on the third storey was concerned it was based on the claim that the appellant had been getting light and air through that window for a period of 25 years before the suit and the same had also been granted in favour of the predecessor of the appellant by the predecessor of the respondent by means of a compromise decree dated 5th January 1937. As regards the right of easement through the window on the second storey, the appellant claimed that he had got the same as a result of the compromise decree. The appellant also added that he had been having access of light and air through that window for a period of more than 181/2 years. The present suit was filed on 16th June 1955 on the ground that Shrimati Chatro Devi respondent had started construction on the second storey of her house and was causing material obstruction to the ingress of light and air through the window on the second storey and was also threatening to raise a construction in front of the window on the third storey. Mandatory injunction was sought enjoining the respondent to remove the four-walls in front of the window on the second storey. Prohibitory injunction was further sought restraining the respondent from constructing any room or building in front of the two windows so as not to interfere with the appellants access of light and air through those windows.
3. The suit was resisted by the respondent who denied the allegations of the appellant. It was averred that the room in front of the window on the second storey had already been completed. Plea was also taken that the act of the respondent had not interfered in any way with the appellants comfortable residence in his house.
4. Material issues for the purpose of the present appeal are issues Nos. 2 to 5, which arc as under:
(2) Has the plaintiff acquired a right of casement of light and air through the khirkees in dispute by prescription?
(3) Has the plaintiff acquired a right of easement mentioned in issue No. 2 by grant from the predecessor-in-interest of the defendant?
(4) If issue No, 3 is proved, is not that grant binding upon the defendant?
(5) Whether the closing of the Khirkees in dispute would cause an actionable nuisance to the plaintiff?
The trial Court found that the appellant had acquired a right of easement in respect of the window on the third storey by prescription as well as by grant. As regards the window on the second storey the finding was that the appellant had acquired a right of easement by grant and not by prescription. Finding was further given that the construction of a roof on the four-walls in front of the window on the second storey had resulted in actionable nuisance. The trial Court, however, declined to grant the relief for the demolition of the roof as there was no prayer for that in the plaint. The trial Court also declined to order the demolition of the four-walls as in its view those walls without the roof did not prevent the ingress of light. So far as the window on the third storey was concerned the finding was that there was no obstruction to that window and the respondent did not intend to cau
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