SURAJ NARAIN Vs. KALYAN DAS

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant for a mandatory injunction. We are only concerned with three out of six skylights, namely those marked A, B and C in the map filed by the plaintiff. These skylights give light and air to certain small rooms. The respondent has built a house which interferes with the slight and air hitherto received from these skylights.

(2.) The defence in respect of the three skylights was that the defendant's house left three other skylights which afforded sufficient light and air to the rooms apart from skylights A, B and C. The trial Court decreed the suit on the ground that the plaintiff was entitled to that quantity of light and air that had been accustomed to enter these skylights, A, B and C during the previous 20 years. In appeal the lower appellate Court dismissed the suit as regards these skylights on the ground that the disturbance did not cause substantial damage to the plaintiff.

(3.) This was clearly a finding of fact. The appellants counsel has, however, taken up the position that, although damages in respect of disturbance of an easement can only be granted whore substantial damage is proved, nevertheless an injunction may be granted irrespective of substantial damage. He based his contention on the language of Section 28(c), Easements Act, which declares that the extent of a prescriptive right to the passage of light or air to an opening is that quantity of light or air which has been accustomed to enter that opening during the prescriptive period irrespectively of the purposes for which it has been used. He supports his contention by reference to the case of Kunni Lal V/s. Kundan Bibi [1907] 29 All. 571. That decision was the decision of a single Judge. In it Aikman, J. refused to follow the English decisions of Colls V/s. Home and Colonial Stores, Ltd., [1901] A.C. 179 and Kine V/s. Jolly [1905] 1 Ch. 480 on the ground that Section 28(c), Easements Act, provided a different test as regards what could be claimed by reason of a prescriptive easement to that applied by the English decisions referred to. The appellant's counsel is no doubt supported by that decisions but I am unable to follow it.