MAHABOOB KHAN SAHIB Vs. BGOVINDARAJULU NAIDU

JUDGEMENT

(1.) This second appeal arises out of a suit for a declaration that the plaintiff is entitled to a right of way along a lane and also to a right to receive light and air from the lane through the windows and ventilators into his house-newly built in the adjoining site and for an injunction directing defendant 1 to remove the wall constructed by him blocking up the passage and the windows and the ventilators in the plaintiff's building. Defendant 2 is the Municipal. Council, Vellore, represented by its Chairman. The site on which the plaintiff's house was built as well as the lane and a number of other pieces of land included in a block known as Pakkali-block were part of a scheme to relieve congestion in the Vellore Town. In the site on which the plaintiff built his house there was an old house but that was demolished before the site was sold to the plaintiff by the Municipality. As regards the lane a part of it was sold to; the plaintiff himself, the other portion remaining vacant, and the Municipal Council resolved that it should be granted, along with other sites, that were not yet assigned, to the persons in front of whose houses they are situated. Apparently in response to this resolution of the Council defendant 1, whose house was in front of the lane lying vacant applied for an assignment thereof to him and made a deposit of the amount calculated according to the rate prescribed in the resolution of the Council. It would however appear that he raised the wall in question long before this even without the permission of the council to build it. The trial Court dismissed the plaintiff's suit but on appeal the District Judge made a decree as prayed for by the; plaintiff. Defendant 1 is the appellant in this second appeal.

(2.) The decree of the lower appellate Court cannot in my opinion be supported, on the grounds given by the learned District Judge in his judgment. He has found in favour of the plaintiff on two grounds, namely (1) that apart from the question whether the plaintiff has acquired an easement right or not, he has a natural right to get light and air through the windows and ventilators on the western side of his house and also to a passage into the lane as against the, whole world except the real owner who, according to him, is the Municipality and (2) that there was an implied grant by the Municipality of the easement in. question which he regards as an easement of necessity. Other points that arose for decision have not been decided by the learned District Judge.

(3.) As regards the first ground, the law does not know of any natural right apart from a right of easement with reference to a right of passage or right to light and air. The learned District Judge appears to have almost asumed, as if it were an admitted fact, that the lane belongs even now to the Municipality. The case of defendant 1 however was that he is entitled to the lane and the question whether defendant 1's claim to the lane is sound or not, was one of the issues decided by the trial Court. No doubt it was decided by the trial Court against defendant 1, but there is no finding on this point by the learned District Judge. Even assuming that defendant 1 is a mere trespasser, it does not follow that the plaintiff has a natural right which can be enforced against him, unless the plaintiff can establish a right of easement; in other words, the trespass of defendant 1 does not confer a cause of action on the plain-tiff. As regards the second ground, the learned District Judge's finding that the easement; claimed is an" easement of necessity, is not supported by any finding as to the absolute necessity of such easement for the enjoyment or use of the site sold to him by the Municipality. It is hot enough to show that in the absence of an easement there would be inconvenience felt, but it should be shown that there is an absolute necessity of the easement for the enjoyment of the property sold to the plaintiff. There is no finding to this effect by the lower appellate Court and the trial Court's finding was that there would only be inconvenience. Illus. (c) to Section 13, Basements Act, which was referred to by the learned District Judge, does not relate to an easement of necessity. The learned District Judge also observes that when the plaintiff's plans were approved by the Municipality, the lane was vacant, that the windows and ventilators and the door must have been shown in the plans and that as permission was granted to build, it must be presumed that there was an implied grant by the Municipality of the easement in question. I am unable to accept this view of the case. The approval of the plaintiff's plans for building does not necessarily imply that the Municipality intended to grant an easement. It would appear moreover that the wall had been constructed long before the Municipality approved the plans submitted by the plaintiff for the building on his site.