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IN THE HIGH COURT OF ALLAHABAD
A. V. Varma, J.
SMT.BHULWATI DEVI - Appellant
Versus
MUNNA LAL - Respondents
Second Appeal 244 Of 1975
Decided On : 08/18/1981
EASEMENTS - RIGHT TO LIGHT AND AIR - SUBSTANTIAL INJURY - EASEMENTS ACT, 1882, SECTIONS 28, 33, 35 - INJUNCTION - MANDATORY INJUNCTION - PERPETUAL INJUNCTION - INTERPRETATION OF STATUTES - SECTIONS READ TOGETHER - SECTION 28 READ WITH SECTIONS 33 AND 35 - SUBSTANTIAL INTERFERENCE WITH PHYSICAL COMFORT - SUFFICIENT INJURY TO RENDER OCCUPATION AND USE OF HOUSE INCONVENIENT OR UNCOMFORTABLE - ESSENTIAL FOR INJUNCTION.
Fact of the Case:
Plaintiffs alleged that defendants' construction would block light and air to their house through ventilators and interfere with their right to flow water from their house. The trial court decreed for plaintiffs in its entirety. On appeal, the decree was modified, affirming the removal of constructions but dismissing the claim for the parnala.
Finding of the Court:
The lower appellate court erred in granting a mandatory injunction for light and air without considering substantial prejudice or injury to the plaintiffs. The courts below failed to consider the settled legal position that an injunction could be issued only upon the plaintiffs satisfying the court that there had been substantial interference with his physical comfort.
Issues: Whether the courts below erred in granting a mandatory injunction for light and air without considering substantial prejudice or injury to the plaintiffs.
Ratio Decidendi: Sections 28, 33, and 35 of the Easements Act, 1882, must be read together to determine the conditions for granting an injunction. An injunction can only be issued if the plaintiff establishes a substantial injury or deprivation of his right sufficient to render the use and occupation of his house inconvenient or uncomfortable according to the ordinary requirements of mankind.
Final Decision: The second appeal is allowed. The judgments and decrees passed by the courts below are set aside. The suit is remanded to the trial court for being disposed of according to law, considering the observations made in the judgment. The parties shall bear their own costs.
( 1 ) THIS second appeal and the cross-objection filed therein are being disposed of by a common judgment as they arise out of the same suit. The suit was decreed by the trial court ill its entirety. On appeal, the decree of the trial court was modified. Whereas the decree of the trial court for removal of constructions complained of by the plaintiff-respondent was affirmed, the decree of the trial court in respect of the parnala was set aside and the plaintiff-respondents suit in that regard was dismissed. Aggrieved by the decree passed by the lower appellate court, the defendants have filed this second appeal. The plaintiff-respondent on the other hand, has filed cross-objection against the dismissal of their claim in respect of parnala.
( 2 ) THE plaintiff-respondents came to the court with the allegations that they have five ventilators on the ground floor of their house in their western wall. Through these ventilators, the plaintiffs were enjoying uninterrupted passage of light and air into their residence for more than 50 years. The defendants are constructing their house towards the west and if they were permitted to complete the constructions as planned by them free passage of the light and air into the house of the plaintiff-respondent shall have been completely blocked. The plaintiff has also prescribed an easement-ary right of flow of water towards the house of the defendants. However, the house which the defendants are constructing, if allowed to be completed is bound to interfere with the right of the plaintiffs to flow water from their house. In paragraph 7 of the plaint, it was alleged that if the defendants were allowed to complete their constructions, they would deprive the plaintiffs of enjoyment of the air and light and there would be consequent, darkness in the room of the plaintiffs house.
( 3 ) THE defence of the defendant No. 1 was that there did not exist any ventilators on the ground floors or in the upper storey in the western wall of the plaintiffs house. It was asserted that the defendant No. 1 had, constructed the wall at the site of their old Kuchcha wall which was always just adjacent to the western wall of the plaintiffs. The said defendants also denied the existence of any rights claimed by the plaintiffs to flow water from their house towards the defendants house. A plea of estoppel was also raised in the written statement.
( 4 ) THE defendant No. 2 also filed a separate written statement and raised pleas similar to those raised by the defendant No. 1.
( 5 ) ON the pleadings of the parties issues were framed by the trial court.
( 6 ) ALL the material issues were answered against the defendants-appellant and in favour of the plaintiff-respondent. With the result that the suit of the plaintiff-respondent was decreed in toto.
( 7 ) AGGRIEVED by the decree passed by the trial court, the defendants filed an appeal which was partly allowed. The decree of the trial court in regard to the right claimed by the plaintiffs to receive light and air through four ventilators en the ground floor and one On the upper storey was affirmed. A mandatory injunction was issued by the lower appellate court to protect that right of the plaintiffs. In regard to the easement claimed by the plaintiff-respondents to flow water from their house towards the house of the defendants, the lower appellate court held against plaintiff-respondents and dismissed their suit for that relief. The lower appellate court took the view upon evidence that the plaintiff had only four ventilators on the ground floor and one on the first floor through which they could be said to have acquired the right to receive light and air. In regard to the remaining ventilators the claim of the plaintiff-respondent was negatived. 7a. So far as the question as to the number of ventilators through which the plaintiffs could be said to have been enjoying the right to receive light and air is concerned, the finding of the lower appellate co
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