Full Judgment
Kanhaiya Lal, J.
1. The question for consideration in this case is, whether the defendant was entitled to construct his wall in such a manner as to block a window in the verandah of the plaintiff which opened towards the land of the defendant. The window had been in existence for more than twenty years. The Court of first instance refused to direct the demolition of the wall by which the window was blocked, holding that the construction had not had the effect of materially interfering with the access of light and air to the verandah of the plaintiff. The lower Appellate Court, however, thought that as the effect of the construction of the wall was to block the window entirely, the plaintiff was entitled to have the obstruction removed in order that the access of light and air through the window might remain unaffected. In doing so, it disregarded the conditions of the locality, inasmuch as the verandah of the plaintiff had sufficient access of light and air from the other sides and the blocking up of the window had made no difference /whatsoever to the light and air which was obtainable to the verandah of the plaintiff otherwise.
2. Section 28 of the Indian Easements Act lays down that the extent of an easement, other than an easement of necessity, and the mode of its enjoyment must be fixed with reference to the purpose for which the right was acquired. The verandah in question has got a street in front, from which any amount of light and air can be obtained. It has got three or four doors behind and a window on the north, which would help the passage of air from one end of the verandah to another. The window in dispute was on the south and its obstruction cannot possibly involve a material interference with the access of light and air, so as to entitle the plaintiff to claim that it should be restored to its original condition.
3. The lower Appellate Court refers to the decision in Khunni Lal v. Kundan Bibi 29 A. 671; A.W.N. 1907,176 : 4 A.L.J. 477, but it is possible that the circumstances of that case may have justified an order for the removal of the obstruction. Section 35 of the Indian Easements Act lays down that, subject to the provisions of the Specific Relief Act of 1877, an injunction may be granted to restrain the disturbance of an easement, if an easement is actually disturbed, when compensation for such disturbance might be recovered; and seotion 33 of the same Act declares that the owner or occupier of a dominant heritage can institute a suit for compensation for the disturbance of the easement where the disturbance has actually caused a substantial damage to the plaintiff. Where the- easement disturbed is a right to the free passage of light, passing to the openings in a house, no damage is considered substantial within the meaning of Sections 33 and 35, unless it materially diminishes the value of the dominant heritage and interferes materially with the physical comfort of the plaintiff or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he might have done previous to the disturbance.
4. In Peter Charles Ernest Paul v. William Robinson 24 Ind. Cas. 800 : 42 C. 46 : 18 C.W.N. 933 : 27 M.L.J. 117 : 1 L.W. 561 : 16 M.L.T. 204; (1914) M.W.N. 681 : 12 A.L.J. 1166 : 16 Bom. L.B. 803 : 20 C.L.J. 863 : 41 I. A 180 (P.C.) their Lordships of the Privy Council, referring to the case of Oolls v. The Home and Colonial Stores Limited (1904) A.C. 179 : 73 L.J. Ch. 484 : 68 W.B. 80 : 90 L.T. 687 : 20 T.L.B. 475, pointed out that the legal test in such an action was whether the obstruction complained of was a nuisance or whether the owner of the dominant tenementiwas getting the uninterrupted access through his ancient windows of a quantity of light, the measure of which was what was required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind.
5. In Gajadhar v. Kishori Lal 28 Ind. Cas. 962 : 13 A.L.J. 385, it was similarly held that the owner of a dominant tenement was entitled to an injunction except in such cases where he would be entitled to recover damages; or, in other words, where the disturbance in equity caused substantial damages to the plaintiff of the kind referred to in the explanation appended to Section 33 of the Indian Easement Act.
6. The plaintiff has, therefore, no absolute right to protect his window against obstruction. He has a right to the access of sufficient light and air through his window, but if there is already a sufficient access of light and air to his house through the other openings therein and the obstruction caused to the window does not materially or in any measure interfere with the sufficiency of the access of such light and air, the plaintiff is not entitled to any relief.
7. The lower Appellate Court has omitted to find whether the obstruction of the window had the effect of materially interfering with the access of light and air to the verandah of the plaintiff or not, but the learned Munsif who inspected the locality points out that the verandah of the plaintiff is quite open in front, that is on the western side, where there is an open space forming the ground of the Pokhrayan market, that there is another window on the northern side and that there are some doors on the eastern side opening into the sitting-room of the plaintiff which bring in an abundant supply of light and air to the verandah. In fact, according to the map attached to the plaint, there is a street in front of the verandah and the, plaintiff does not really suffer any injury by the blocking up of the window. Each case of an alleged disturbance of an easement of light and air must be decided on its own facts. On the facts disclosed in the present case the plaintiff is not entitled to any relief, as he has suffered no real injury. The appeal is, therefore, allowed and the claim of the plaintiff for the demolition of the wall, blocking up the window in question, is dismissed with costs here and hitherto.