SOFIA BI BI SAHEBA Vs. VASUDEVA CHETTY

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of the Principal City Civil Judge at Madras in O.S. No. 555 of 1935. The suit is for a mandatory injunction directing the defendants to remove the construction on their property so far as is necessary to restore to the plaintiff the free use of her windows and the quantity of light and air that has been coming through them undiminished and for a permanent, injunction restraining them from erecting any construction so as to interfere with plaintiff's use of her windows.

(2.) The plaintiff is the owner of a storied house No. 420 situated on the western row of the Triplicane High Road facing the east. The defendants are owners of house No. 419 situated next south of the plaintiff's house. The plaintiff alleges that the southern wall on the first floor of her house facing the defendants house, contains three windows which have been in existence for over 50 years, that she had been enjoying free light and air through those windows for over 50 years, that the defendants began, about a month or two prior to suit, to construct a first floor on their house which consisted uptill then of only a ground-floor, that the defendants in so doing put up a wall by the side of the plaintiff's southern wall and as a result completely blocked the easternmost of the three windows, that the defendants obstruction causes serious danger to the inmates of the plaintiff's house and that the value of her property is thereby diminished. The defendants deny the existence of the windows for over the statutory period and contend that the plaintiff suffers no substantial privation of light and air and that their act does not amount to an actionable nuisance.

(3.) The trial Judge found that the three windows were in existence for over the statutory period. It may here be noted that the learned Judge made a personal inspection of the premises on several occasions. He held on the evidence adduced, that there is no such diminution of light and air as to amount to a nuisance. As regards the westernmost window there is admittedly no obstruction. With respect to the middle window the Judge found that by reason of the roof of the defendants hanging over a portion of it there is no such diminution as to cause serious discomfort or to render the plaintiff's house uninhabitable. As for the easternmost window it is not disputed that it is completely blocked up. But the learned Judge found that the plaintiff receives sufficient light and air from other sources and holds that even if the easternmost window is closed up, the plaintiff cannot succeed as there is no substantial damage.