SULTAN NAWAZ JUNG Vs. RUSTUMJI NANABHOY BYRAMJI JIJIBHOY

JUDGEMENT

(1.) IN 1868 the trustees of Rustumji Jamsetji Jijibhoy conveyed to the appellant a house and premises in Hornby Row, Bombay, consisting of a ground-floor and four upper stories, in the south and west walla whereof there are a number of windows. Upon the south side of this house there stood until 1893 a house belonging to the respondent which was separated from the appellant's house by a narrow space and extended in height to a point below the level of the appellant's third-story windows. On May 6, 1893, the respondent's solicitors by letter informed the appellant that his windows were opened and suffered to exist under a special arrangement made between their predecessors in title, and that such arrangement was confirmed and ratified by the appellant by an instrument in writing dated July 28, 1883; that as their client intended to build a house upon his premises up to or possibly higher than the appellant's existing house, the requisite notice to close up his windows and remove the projections would be served in due course. In reply to this letter the appellant's solicitors wrote, on July 17, 1893, that their client was not aware of the alleged arrangements or of the writing of July 28, 1883, and that the windows existing in the south wall of his house and opening on the premises of the respondent were ancient, and that full light and air had been enjoyed by the occupiers of the appellant's house without any obstruction or interruption for a number of years. The respondent having commenced foundations for his intended house, the appellant, after some further correspondence between the solicitors, on October 13, 1894, filed a plaint in the High Court at Bombay praying that it might be declared that he is entitled to free and uninterrupted access of light and air to and for the windows on the south and west sides of his house save so far as the same was obstructed by the respondent's old house. On the same day, on an affidavit verifying the plaint and saying that the respondent was rapidly proceeding with the erection of his new house, a rule nisi for an interim injunction was granted by the Court.

(2.) THE suit came on for hearing on March 14, 1895, when the learned judge who heard it held that the arrangements evidenced by letters of May 11, 1865, and March 17, 1868, were temporary arrangements and came to an end when the respondent wrote the letters of November 2, 1871, and July 17, 1872, and dissolved the injunction and made a decree for Rs. 4500 damages with costs. Both parties appealed, the now respondent on the ground that the now appellant had not acquired an easement as claimed, and the appellant on the ground that the learned judge should have granted an injunction and not have awarded damages only. The Appeal Court was of opinion that the letter of May 11, 1865, was a contract or agreement by which the appellant's predecessor in title is allowed to enjoy the access of light and air through the windows on the south side of his house, in return for which he promises that he will not raise any objection to those windows being blocked when the respondent should rebuild and raise his house. And being also of opinion that so long as that promise remained in force the appellant could acquire no easement in respect of those windows and that it had not been put an end to, the Appeal Court reversed the decree of the Lower Court and dismissed the suit.

(3.) ON May 17, 1865, Byramji Jijibhoy wrote to Rustomji Jamsetji Jijibhoy as follows: I have received from you, sir, the note dated May 11, 1865, in respect of Bhai Pestanji Tabak's house. And as regards what you have communicated in writing about the additional building which you, sir, have erected thereon, there is a slight difference therein. And on your coming to Bombay or on my coming to Poona when you, sir, will be at Poona I shall give an explanation in respect thereof. And if yon should deem it meet do you be good enough to make some alterations in what has now been written and amend the same because I do not think it advisable to raise any dispute whatever with a gentleman like you. I have therefore by writing this given you a little trouble, This is the sole representation. 4. In this letter the writer appears to be willing to accept the promise in the previous letter, but to wish for some alterations, leaving it, however, to Rustomji Jamshedji Jijibhoy to do as he deemed meet. It does not appear that there was any further correspondence until September 4, 1867, when Byramji Jijibhoy wrote to Haji Ismail Haji Hubib as "agent to the Jemadar of Hyderabad" (a title of the appellant) as follows: Learning that you have purchased for the Jemadar the house No. 7 in Hornby Row from the trustees of the estate of Mr. Rustumji Jamsetji Jijibhoy, I take this opportunity of drawing your attention to the correspondence that has passed between myself and Mr. R.J. Jijibhoy respecting the windows and projected conframes opening on the north of my property, No. 6, Hornby Row, wherein the said Mr. R.J. Jijibhoy has agreed to throw no obstacle or hindrances of any kind when ever I required the said windows and their projections to be blocked up that writing (? being) insufficient I asked him in my letter dated May 17,1865, to send me a more particularised paper to the above effect, but owing to different circumstances and the late difficulties of that gentleman's affairs the matter rests still incomplete. But, as you are now the agent for the present proprietor of the said house, I shall thank you to pass me a fresh agreement or writing binding the proprietor, his heirs, executors, administrators and assigns to block up the said windows and the projected conframes at any time I or my heirs, executors, administrators and assigns shall demand and require the same to be done, without hindrance or delay on your part. In the absence of such an agreement or writing to the above effect forthcoming from you within a reasonable time, I shall be compelled to have these windows blocked up and the conframes removed at once. Although I have not the slightest intention of adopting this course, I should like to have the business done in a regular and straightforward manner, preventing thereby any unpleasantness hereafter.