T R BHUSHNAM Vs. CUMAPATHI MUDALIAR

JUDGEMENT

(1.) This is an appeal from the decree of the City Civil Judge, Madras, dated 15 October 1934, in O.S. No. 51 of 1933, a suit for a declaration that the plaintiff is entitled to free passage of light and air through the aperture marked A and the windows marked B, C, D, E and F in the plan attached to the plaint and for a permanent injunction restraining the defendants from raising any wall or other structure on their premises to the south of the plaintiff's house which might have the effect of obstructing such free passage of light and air. The plaintiff and the defendants are the owners of two contiguous houses Nos. 13 and 12, Kuppumutha Mudaly Street. The plaintiff built his house in 1905 and his house has got, besides the ground floor, a first floor and also a second floor. The second floor, however, is not material for the purpose of the present suit. The plaintiff's case is that the defendants are attempting to raise a wall 12 feet above the existing wall of their house in order to build a terraced upstairs and that this wall will shut out the light and air which formerly used to enter through the apertures mentioned above. The defendants resisted the suit on two grounds, namely that the plaintiff had not acquired an easementary right to light and air by prescription as alleged by him and also that the proposed wall would not substantially diminish the light and air which used to be admitted through the apertures in question. On the first point the evidence was all one way, namely that the apertures were in existence from 1905 or 1906 and that therefore the plaintiff had acquired an easementary right by prescription to light and air with regard to the apertures in question. It was on the second ground that the controversy centred during the trial. The trial Judge found that though the proposed wall would cause some diminution of light and air the diminution would not be so much as to cause physical discomfort. He was of opinion that in the circumstances no injunction should be granted as desired by the plaintiff but that the defendants should pay Rs. 150 as damages to the plaintiff on condition of paying which they were to be at liberty to raise the height of the present wall by 10 feet 8 inches. The plaintiff appeals and the defendants have not filed any cross- objections.

(2.) The only point for determination in this appeal is whether in the circumstances of the case the plaintiff is entitled to an injunction as prayed for by him. The trial Judge's finding that the plaintiff is entitled to damages appears to imply that the proposed wall would cause so much diminution of the light and air that used to be admitted through the apertures in question as would amount to a nuisance, for it is only if the proposed wall would be a nuisance that damages could be granted. It is however clear from a reading of his judgment that this was not what he intended to find; there are several passages in the judgment from which it is clear that the trial Judge was of opinion that though there would be some diminution of light and air the diminution would not be such as would cause physical discomfort. Damages appear to have been granted by the trial Judge not because he found that the proposed wall would be a nuisance or would constitute an infraction of the plaintiff's right of easement but as some compensation for diminution of light and air. On the findings of the learned trial Judge it would not be possible to support his order requiring the defendants to pay the plaintiff Rs. 150 as damages ; but as there has been no appeal from this order either in the form of a separate appeal or in the form of cross-objections, the order regarding damages must stand. That order however cannot be regarded as sufficient to establish the fact, that the proposed wall would be a nuisance; and that question has to be decided independently in the light of the evidence in the case and of the circumstances.

(3.) The evidence in the case is mainly that of two retired Engineers, one on each side. P.W. 5, a Retired District Board Engineer, has given evidence on behalf of the plaintiff and D.W. 1, who is a Retired Engineer of the Madras Corporation, has given evidence on the side of the defendants. According to P.W. 5 the reduction of the light and air will be substantial. Though in examination-in-chief he stated that the ground floor would lose all the light if the proposed wall is built; he admitted in cross-examination that there would be some light even if the proposed wall is built and that the chief complaint was the absence of breeze from the south. His evidence does not show that the diminution of light and air would be such as to cause physical discomfort. This consideration of physical discomfort does not appear to have been present to his mind nor was it put to him during his examination.