GANPAT Vs. LAXMAN RAO

JUDGEMENT

(1.) THE plaintiffs-appellants' suit has been dismissed in both the lower Courts for reasons which are clear from the two judgments in question. The plaintiffs claimed that they had a right to ingress of light and air and to emit smoke through the window E shown in the plan attached to the plaint; that they had also a right to pass on to the vacant land A B C D in order to effect repairs to their wall A D; and, finally, that they had a right to project the eaves two feet to the south of A D. Both the lower Courts have held that the window has not been in existence for more than 15 years and that no prescriptive right of easement had, therefore, been acquired.

(2.) IT has been contended on behalf of the plaintiffs-appellants in this Court that the right in question might also have been acquired by grant or custom and that the lower Courts have failed to consider this aspect of the case. If there was to have been any question of the right of easement in question having been acquired by grant or custom, there should have been specific pleading on the point and it is fairly obvious that the contention is now raised for the first time merely because the findings of fact arrived at by the lower Courts have-bolted and barred the door against the right of easement having been acquired by lapse of time. It is obviously impossible to admit now a plea which would involve a fresh enquiry into questions of fact as to whether. the rights claimed by the plaintiffs were acquired by grant or custom. The obvious principle to be followed in a case like the present is that the defendant is entitled to enjoy his own land in the way he chooses to do unless he interferes with his neighbours or causes them injury ,or inconvenience. In the present instance the very minute room, shown as H in the plan, has already, besides the window in dispute, another window 6, opening on to the compound, and the door H. The inspection-note recorded by the Subordinate Judge suggests that the closing of the window E will necessarily cause some-curtailment of the light and air entering the room, but it is impossible, on the evidence on record, to hold that any nuisance will be caused sufficient to justify interference by this Court in the particular circumstances 'of the present case : cf. Paul v. William Robson [1912] 39 Cal. 59.

(3.) AS regards the alleged right to enter on the previously open space A B C D for repairs to the plaintiffs' wall A D, the appellants' case is even a weaker one. I fully concur in this connexion with the decision of Beaman and Heaton JJ. in Himatlal Maganlal Shah v. Bhikabhai Amritlal Shah [1918] 42 Bom. 529. Most obviously on the. evidence in the present case, no right to enter on the defendant's land for purposes of repairs has been made out and this aspect of the case has been, correctly dealt with by the lower appellate Court. There has been no proof worthy of the name that any entry on the defendant's land was ever exercised by the plaintiffs as of right for purposes of repairs to their own property, and it would have required strong evidence, indeed, to make out a right of any such nature.