JUDGMENT

1. We have for the purpose of convenience and with the consent of the learned pleaders engaged on both sides, heard Second Appeals Nos. 20 and 21 together. The facts of the case are shortly these:

2. The plaintiff had a house in Shaikar-pur. The defendant had a one-storeyed building alongside. The defendant pro: posed to raise his ground floor apparently by two storeys with the result that the erection of the new building would have' completely closed two of the plaintiff's windows. One of these windows was in the plaintiff's hall and another in a bedroom. The plaintiff sued for an injunction, restraining the defendant from blocking his windows. The first Court refused an injunction as regards the window in the hall, but gave it as regards the window in the bed-room. Both parties appealed and on the 20th of April 1921, the appellate Court confirmed the first Court's judgment. The plaintiff had in the meantime applied for and obtained an interim injunction. The Judge of the first Court went to the place and gave the defendant permission so to build, as not to block the window in the plaintiff's hall. During the following vacation, the defendant built two storeys, but left a space 3 feet by 6, so as not to close the window in the plaintiff's bed-room. When the Court re-opened, the plaintiff asked the first Court under Order 21, Rule 32 to take action against the defendant.

3. The first Court held that so far as the window in the hall was concerned, the defendant had not acted improperly but that he had acted improperly as regards the window in the bed-room. He, therefore, ordered the defendant to remove a certain amount of his building six feet to the west from his eastern wall, seven feet 9 inches towards the south and 24 feet in height. The defendant appealed to the District Court and on the 9th May 1924, the Joint Judge, (Mr. Chandiram) allowed the appeal, holding that in the absence of any clear terms in the original decree and in the absence of proof of any material damage to the plaintiff's property, he would not interfere with the construction raised by the appellant after the decree. Against this decision, the two appeals before us have been made to this Court.

4. It must be remembered that the windows about which the plaintiff has complained are extremely small only a few inches in breadth and a few inches in length; and it is impossible that the plaintiff should claim the stoppage of all building in the neighbourhood for the sake of the extremely small amount of light and air that he must at the lest of times, have enjoyed through his windows. The whole question of casements such as these has been elaborately discussed and with immense learning by Lord Halsbury in the leading case of Colls v. Home and Colonial Stores [1904] A.C.179. The learned Lord Chancellor therein at page 182 observed:

Light, like air, is the common property of all, or, to speak more accurately, it is the common right of all to enjoy it, but it is the exclusive [property of none. If the same proposition against which I am protesting could be maintained in respect of air the progressive building of any town would be impossible. The access of air is undoubtedly, interfered with by the buildings which are being built every day round London. The difference between the town and country is very appreciable to the dweller in cities when he goes to the open country, or to the top of a. mountain, or even a small hill in the country; but would the possessor for twenty years of a house on the edge of a town be at liberty to restrain his neighbour from building near him because he had enjoyed the free access of air without building near him for twenty years?

5. The learned pleader for the appellant has contended that it does not lie within our power to vary the decree of the first Court which was confirmed by the District Judge, and which we are now merely called upon to execute. According to the learned pleader, he asked for an injunction that the light an