1928 Present: Fisher C.J. and Drieberg J.

ZAHIRA UMMA v. ABDUL RAHIMAN.

203-D. C. Colombo, 22,163.

Servitude of light and air-Construction, of building to obstruct the access of light-Injunction.

Where the plaintiff sued the defendant to restrain him from erecting a building so as to obstruct the access of light and air to plaintiff's premises,-

Held, that the onus lay on the plaintiff to prove that, if the proposed building was erected, the plaintiff's building could not be put to the purpose for which it is put as beneficially as it has been heretofore.

Where a person with knowledge or warning of another's right or claim of right does something which infringes or will infringe the rights of another, the Court will interfere to protect the person whose rights are infringed or threatened by a mandatory or prohibitory injunction according to circumstances.

APPEAL from a judgment of the District Judge of Colombo. The facts appear from the judgment of the Chief Justice.

Hayley, K. C. (with Canakaratne), for defendant, appellant.

H. V. Perera (with Navaratnam), for plaintiffs, respondents.

April 4, 1928. FISHER C.J.-

In this case the 1st plaintiff is the owner of premises known as 44, Third Cross street, Pettah, in Colombo, and the 2nd plaintiff is her husband. The defendant is the owner of adjoining premises upon which there stood a building which has been pulled down and upon the site of which he has begun to erect another building. The plaintiffs sue the defendant to restrain him from erecting this new building so as to obstruct or diminish the access of light and air to two windows on the south-western wall of 1st plaintiff's premises.

The right of the plaintiff to the access of light and air through the two windows is not now disputed, but the substantial and main contention of the defendant is that if and when the building the defendant wishes to erect is completed the effect on the 1st plaintiff's premises will not be such as to constitute an infringement of her legal rights inasmuch as, so he contends, " the 1st plaintiff's premises will not be less fit for use and occupation after the construction of the said building."

The 1st plaintiff's building is of an , oblong shape. It is entered from Third Cross street and the door, or something that serves for a door, is co-extensive in size with the end of the building which abuts on Third Cross street. At the end of the building away from the street there is a staircase leading up to a first floor room 18 feet by 10 feet in size which is lighted by five windows. Of these, the two on the south-west are the windows which the plaintiffs complain will be obstructed by the defendant's building. On the opposite inside wall to these windows is a large glass window opening on to the ground floor of the building, and through this window the light from the windows in the south-west wall of the building reaches the ground floor. Substantially, therefore, the only light of the ground floor is the light from the entrance and the light borrowed from the two windows on the south-west wall.

The evidence shows .that the premises of the 1st plaintiff are in a commercial locality and are used as a store for cement and hardware and that sales take place there. The witness called for the defendant states that the first floor is used as an office.

The proposed building-and by the proposed building I mean the building as originally intended to be constructed at the date of the action-would leave no intervening space between the 1st plaintiff's and the defendant's premises, but would be right, up against the 1st plaintiff's building, with the result that the Ova windows affected would, according to the evidence of the one witness called for the defendant, be left with an opening of 51/2 inches in height only, and this narrow slit would open on to a roof sloping upwards

at such an angle as would make the ridge of the