C RAMANUJULU NAIDU Vs. CAPPARANJI AMMAL

JUDGEMENT

(1.) This is an appeal from a decree of Mr. Justice Bakewell directing the defendants to remove a certain wall which is marked in the plan, and perpetually restraining them from erecting any wall or building so as to obstruct the access of light and air through the three openings on the southern wall of the plaintiff s house. The allegation in the plaint--paragraph 4--is: "That the defendants have recently commenced to erect on the first floor of their house a structure which is calculated to interfere with the plaintiff s right of light and air to the windows, doors and rooms on the southern side of her house, which right the plaintiff claims as a right by reason of her house having been built for upwards of 20 years, and thereby having acquired by peaceable enjoyment a right of light and air thereto."

(2.) Now, three points were taken in appeal. The first point was that the plaintiff had not proved 20 years enjoyment of the right by way of easement. The second point was that assuming 20 years enjoyment was proved, there was no such damage as would give to the plaintiff a right of action with reference to the acts done by the defendants. The third point was that, assuming there was a right of action, the proper remedy was by way of damages, that the injunction was improperly granted and that that injunction should be dissolved.

(3.) Now, the first point was not very seriously contested. A Municipal document was put in which goes to show that the building was originally constructed in 1883 or 1889. Two witnesses were called with reference to this part of the case on behalf of the plaintiff. One was the man who actually built the house in question. He said he built it 20 or 22 years ago for Andoo Chetty. In cross-examination he, no doubt, said that he could not say whether it was 10, 18, 20 or 22 years ago that he built the house. Another witness was called on behalf of the plaintiff with regard to this question. He was the plaintiff s agent who looked after her affairs in Madras. He said that "the house was built 20 or 25 years ago. I remember it being built. The whole house was built then." As to the time when the house was built he was not taken in cross-examination.