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.) Now, under the common law, easements, whether of light or any other description, are acquired by prescription by the owner of the dominant tenement as against the owner of the servient tenement, that is to say by and against the freehold interest, Under Section 2 of the Prescription Act of 1832, which deals with easements, other than easements of light and air, the same rule holds good, and such easements can only be acquired by a freeholder against a freeholder. But it was held, as long ago as 1861 in Frewen V/s. Philipps (1861) 11 C.B.N.S. 449, that on the language of Section 3 of the Prescription Act, a right to light could be acquired by prescription by a lessee even against his own landlord as the owner of the servient tenement. The decision met with some adverse criticism, but in Morgan V/s. Fear [1907] A.C. 425 the House of Lords said that the decision had been in existence too long to be overruled, though Lord Macnaghten observed that the only fault in the argument for the appellant against the decision in Frewen V/s. Philipps was that it came too late.