AMBARAM POPAT VANKAR Vs. BUDHALAL MAHASUKRAM SHAH

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent against an order made by Mr. Justice Wassoodew in second appeal, and it raises the question, whether under the Indian Easements Act a lessee can acquire a right to light over adjoining property which belongs to his landlord.

(2.) THE plaintiff possessed a lease granted to him in 1905 of land on which he erected a building in 1906, which building had windows overlooking the adjoining land which belonged to the plaintiff's lessor, In 1920 there was a division of the freehold interest, the freehold of the land leased to the plaintiff going to the sons of the former owner, and the freehold of the alleged servient tenement, to his grandsons. In 1928 the plaintiff acquired the freehold of the property on which he held the lease, and in 1934 the defendant acquired the adjoining land, that is to say, the alleged servient tenement." This suit was filed in December, 1935. It is, therefore, clear that the plaintiff cannot prove twenty years' enjoyment of light and air through his windows without including part of the period before 1920, when the alleged servient tenement belonged to his landlord.

(3.) THE learned Judge in second appeal held, however, that in the case of a right to light, the right was acquired by the owner of the house, and not by the owner of the land, and that as the plaintiff was the owner of the house built on the land in his lease, he acquired this right on behalf of himself as against his landlord who was not the owner of the house. THE learned Judge based his decision on a full bench case in the Allahabad High Court Abdul Rashid v. Braham Saran [1938] All. 538, F.B. That was a case dealing with a right of way, and had nothing to do with an easement of light. However, the Court did express the view that the English rule might apply in the case of easements of light, because the easement was acquired on behalf of the house and not on behalf of the land, and Mr. Justice Wassoodew followed that opinion. I must confess that I am wholly unable to agree with that view. I demur to the suggestion that a lessee who builds a house as a permanent structure on the land comprised in the lease becomes the owner of the house for more than the leasehold interest in the land. He may have a right to remove the house; and he may even be regarded as the owner of the materials of which the house is built. But that is the ownership of a chattel, and an easement cannot be annexed to a chattel. If the lessee becomes the absolute owner of a house built on the land leased, it would be necessary at the termination of the lease to convey the house, if not removed, by a registered document to the lessor. This of course is unnecessary as the house with the land reverts to the lessor. THE doctrine that an easement of light can be acquired on behalf of a house, apart from the land, would lead to singular results. Supposing that a right to light is enjoyed for twenty years in respect of the windows of a leasehold house, and at the end of the lease the house is pulled down, what happens to the easement? If it was acquired on behalf of the house, presumably it would be destroyed on the destruction of the house. But I apprehend that in such a case there cannot be the slightest doubt that if the landlord, without any statutory interruption, built another house the windows of which were in the same position as the windows of the old house and enjoyed the same shaft of light, he would be entitled to a right to light for those windows. In my opinion the plaintiff did not before 1920 begin to acquire an easement of light over adjoining land belonging to his landlord and therefore his suit must fail. This was the view of the Assistant Judge in first appeal.