FAQIR RAM Vs. FAILU

JUDGEMENT

(1.) The present second appeal has been filed by the plaintiff against the judgment and decree passed by the lower appellate court dismissing his suit for injunction against the defendant-respondents. The defendant-respondents were constructing a wall of their house adjoining the portion of the plaintiff, whereupon the plaintiff filed the suit claiming......injunction against the defendant-respondents that they could not raise the wall as some windows of his will be closed. The defendant-respondents claimed that the property of the plaintiff and the defendant, both belong to the same person and the plaintiff and the defendants were the tenants of the land on which their constructions stood. The land belonged to Raja Ausanganj and they were paying 'parjawati' to the landlord Raja Ausanganj. The defendants has purchased his house in the year 1963 and till that time that belonged to the landlord.

(2.) The trial court decided the issue without giving any finding whether the easement of light and air was being enjoyed by way of necessity and merely held that the plaintiff was enjoying such right for more than 20 years. The case was, thereafter, remanded by the lower appellate court and after remand, the case was again decided on 6-4-1967. The lower appellate court, thereafter, allowed the appeal and dismissed the suit, holding that as the defendants' land and the plaintiff's land belonged to the same owner at least till 1963 and the plaintiff was still a tenant of the land over which his house was constructed, he could not have prescribed any rights of easement against his own landlord. It did not enter into the question whether any right was acquired as an easement of necessity or whether the plaintiffs effected constructions could be rendered useless by the closure of the window. Learned counsel for the appellants has relied upon a case reported in AIR 1938 All 293 (FB), Abdul Rasheed v. Brahma Saran. That case related to a right of way and it was observed therein that in regard to the easement of light, Section 15 paragraph 1 of the Easements Act would apply. In that case relying upon a case Morgan v. Fear reported in 1907 AC 425 it was held, that one termor can acquire such an easement against another termor when there is same reversionary for both, "it was pointed out that easement of light was an exception to the general rule that one tenant of an owner of land cannot acquire an easement against another tenant of the same owner." This case does not hold that the plaintiff who was a tenant of Raja Ausanganj, could have prescribed any right against his landlord. The defendant entered the scene in the year 1963 and the plaintiff could have acquired any right only after his enjoyment for more than 20 years after 1963.

(3.) There is yet another aspect of the case. In the leading case of P. C. E. Paul v. William Robson (1914) 12 All LJ 1166, their Lordships of Privy Council laid down the following principles of law.