KASTURI LAL Vs. KRISHAN CHAND

JUDGEMENT

(1.) THIS is an appeal by the defendants under the letters patent with the permission of the Single Judge (Jaswant Singh J)

(2.) THE appeal arises out of a suit filed by the plaintiffs for permanent injunction restraining the defendants from erecting their building in such a manner so as to close two ancient ventilators existing on the western side of the plaintiffâ„¢s house and there by cause obstruction to the plaintiffâ„¢s right to receive light and air. It was averred by the plaintiffs that by virtue of the proposed construction their right to receive light and air would be substantially impaired. The trial court after consideration of the evidence and holding a local inspection dismissed the plaintiffs suit. On appeal the District Judge reversed the finding of the trial court holding that as the plaintiffs were entitled to the same amount of light and air, which they had been receiving during the prescriptive period, the proposed constructing would have the effect of destroying this right and causing substantial damage to it and that by virtue of the closing of the ventilators there would be a substantial reduction in the plaintiffs right to receive light and air so as to amount to nuisance. The learned judge also held that if the building was erected and the ventilators were closed the rooms would become dark. There was a second appeal to a single judge of this court against the decision of the District Judge who agreed with the findings recorded by the District Judge and dismissed the appeal. The learned single judge, how ever, held that even if other sources of light were available to the plaintiffs after the closure of the ventilators, since there was no evidence to indicate that the plaintiffs had acquired a prescriptive right in these sources, the relief of injunction could not be refused to them.

(3.) THE main point contended before us by the counsel for the appellants is that the single judge as also the District Judge have made a completely wrong legal approach to the facts of the present case. Their judgments proceed on the interpretation ,of S. 33 of the Easement Act (hereinafter to be referred to as the Act) which according to the learned counsel controls S. 35. In other words it has been argued that unless the plaintiffs prove that there has been a substantial reduction in their right to receive light and air so as to amount to a nuisance or a substantial damage as contemplated by the Explanations 1, 2 and 3 to S. 33 of the Act, no injunction can be granted by the Court. On the other hand Mr. Das appearing for the respondents has supported the judgments by contending that Ss 33 and 35 relate to two different contingencies and S. 35 (b) is not at all controlled by the Explanations to S. 33. The learned single judge accepted this argument of the respondents and tried to distinguish the authorities cited before him on the ground that all those authorities related to suits brought by the plaintiffs for compensation after the easement had already been disturbed, and was therefore covered by Ss. 33 and 35 (a) of the Act. We have gone through the authorities to which we shall refer hereinafter and we find that they have not been properly interpreted by the learned single judge. Before, however, going through the authorities it may be necessary to understand the scope of Ss. 28,33 and 35 of the Act. S. 28 confers various rights of easement including the right to passage of light and air. S. 28 (b) runs thus. - "In the absence of evidence as to such intention and purpose, the extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non -testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non -testamentary instrument was made."