SHIV PRATAP SINGH Vs. PREM NARAIN JAISWAL

JUDGEMENT

(1.) THIS appeal by the plaintiff arises out of his suit for permanent injunction to restrain the defendants from raising constructions adjacent to his house which is situated in the north of a land known as Ram Leela ground. In the southern wall of the plaintiff's house there exist certain Parnalas and Naabdans as well as three windows in the first floor which open towards the Ram Leela ground. The plaintiff claims to have acquired ease-mentary rights of light and air and also a right to flow rain water through the evas as also through the Naabdan in question which according to the plaintiff have been in existence for more than twenty years.

(2.) THE defendants contested the suit denying the averments made by the plaintiff. THE suit was decreed by the trial court but on appeal the decree was modified by the appellate court below. THE relief for injunction to restrain the defendants from making constructions in front of the window and ventilators of wall A B was disallowed. THE rest of the decree of the trial court was maintained. Aggrieved by that decision the plaintiff has filed this second appeal. A cross-objection has also been filed by the defendants.

(3.) NOW coming to the other points involved in the appeal, it has to be seen as to whether the appellant is entitled to have the injunction which has been refused to him by the appellate court below. As pointed out in Peter Charles Ernest Paul v. William Robson, 41 IA 180 PC, the owner of a dominant tenament does not obtain by his easement a right to all the light he has enjoyed during the period of prescription. He obtains a right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind having regard to the locality and surroundings. There is no infringement of the easement acquired by ancient lights unless the act which is done amounts to a nuisance. In the instant case it has been found that the impugned act would not amount to nuisance, hence the claim for injunction, so far as the windows and ventilators were concerned, was rightly held to be unsustainable. To constitute an actionable obstruction of free passage of light and air to the openings it is not enough that the light and air is less than before but it has rendered the ocoupation of the premises uncomfortable.