JUDGMENT
Banerjee and Rampini, JJ.
1. This appeal arises out of a suit brought by the plaintiff appellant for a declaration of her right to the passage of light and air through certain doors and windows, for the removal of certain obstructions to the same, and for a perpetual injunction restraining the defendant from extending a certain roof close to some of those doors and windows referred to in the plaint.
2. The defence was that the plaintiff was not entitled to the right claimed, there being no such right reserved in her favour in the decree for partition by which the building, to which the right to the passage of light and air is said to appertain, was allotted to the plaintiff’s share.
3. The first Court found for the plaintiff to this extent, namely, that the plaintiff was entitled to an injunction restraining the defendant from extending the roof, or hanging verandah, and it gave the plaintiff a decree accordingly.
4. On appeal the Lower Appellate Court has reversed the first Court’s decree and dismissed the plaintiff’s suit, holding that the rights of the parties must be determined with reference to the decree in the partition suit, and as that decree does not reserve any right to light and air, such as the plaintiff claims her favour, she is not entitled to a decree.
5. In second appeal it is contended for the plaintiff that the Lower Appellate Court is wrong in holding upon the facts found that the plaintiff is not entitled to the right claimed.
6. It is argued for the plaintiff that the effect of the partition decree, which was a decree by consent, was to entitle the plaintiff to enjoy the building in question with those apparent and continuous quasi-easements which were attached to the same and which were necessary for the enjoyment of the building in the way in which it was enjoyed at the time of the partition.
7. In support of this contention several cases have been cited, of which it is necessary only to refer to the following, namely, Ratanji Hormasji v. Edalji Hormusji (1871) 8 Bom. H.C.O.C. 181; Amuttol Russool v. Jhoomuck Singh (1875) 24 W.R., 345; Cham Surnokar v. Dokouri Chunder Thakoor (1882) I.L.R., 8 Cal., 956; and Bolye Chunder Sen v. Lalmoni Dasi (1887) I.L.R., 14 Cal., 797.
8. On the other hand it is contended for the respondent that the rule of English law which implies a grant of an easement upon severance of tenements is one that does not apply to this country, that even if such a rule could apply to a case of severance by the act of parties it can have no application to a case like this, where severance is effected by a decree of Court, and that, in a case like the present, the rights of the parties should be determined solely with reference to the decree made in the partition suit.
9. No doubt the rights of the parties must be primarily determined with reference to the terms of the decree in the partition suit. If the decree had contained any express provision one way or another bearing on the present point, such provision would have to be given effect to quite irrespective of any rule of law with regard to an implied grant of an easement upon severance of tenements. But there is no express provision in the decree bearing upon the present question.
10. One thing, however, is clear from the terms of the decree in the partition suit, that the decree was made by consent of parties; that what was divided was not merely the land, but the land with the building standing on it; and that a certain portion of the land with the buildings, as indicated in the plaint referred to in the decree, is allotted to the plaintiff and a certain other portion to the defendant.
11. That being so, the question is whether the appellant who had allotted to her a portion of the house, that is the land with the building standing thereon, had that portion allotted to her with these apparent and continuous quasi-easements, which are necessary for the enjoyment of the building as a building, or whether she got simply the land allotted to her with the building then standing thereon, which might any day by the action of her co-sharer be converted into an uninhabitable building.
12. There being no enactment of the Legislature applicable to a case like this, the question we have stated will have to be answered with reference to the principles of justice, equity and good conscience; and the Courts in this country have considered the rule of English law known as the doctrine of implied grant of easements upon severance of tenements, as being in accordance with justice, equity and good conscience. This will appear from the cases to which we have referred above.
13. It was urged that the question, whether the rule applied to a case in which severance is effected by a decree of Court, was raised in the case of Bolye Chunder Sen v. Lalmoni Dasi (1897) I.L.R., 14 Cal., 797, but was considered by the learned Judges who tried that case to be one of considerable difficulty and was left undetermined; and’ that the rule of implied grant of easements ought not to apply to such cases because that rule is based either upon the principle that no man can derogate from his own grant or upon a presumption as to the intention of the parties by whom severance is effected; and neither of these two can apply to a case where severance is made by a decree of Court.
14. No doubt there is considerable force in this argument, but it is unnecessary to decide the broad question in this particular case, the partition here being effected, not by the Court as in a contested suit, but by consent of parties, the Court merely recording that consent.
15. That being so, we are not precluded from applying to this case the principle of presumed grant of easements upon severance of tenements.
16. It was further contended that we should not apply to a case where parties come to a partition the rules applicable to a case where the owner of an entire tenement alienates a portion, or simultaneously alienates different portions of the whole to different persons; and that in a case where a partition is effected by parties the dominant consideration in their minds is that each should acquire a portion which he could enjoy without interference by his co-sharer. But there is another and a more important matter to consider, and that is this: In dividing property, the value of each divided portion ordinarily is assessed with reference to its existing condition, and in the present case there is nothing to show that any other consideration guided the parties.
17. On a full consideration of these matters we think that it would accord best with the rules of justice, equity and good conscience to hold that the plaintiff by the partition in question got the portion allotted to her, with the passages for light and air which are found by the first Court to be necessary for the enjoyment of that portion in the way in which it used to be enjoyed, and that the absence of any express provision in the decree does not stand in the way of the plaintiff’s claiming the right to those passages for light and air.
18. It was urged that if the decree of the Court of Appeal below is set aside, the case ought to go back. We have considered the grounds of appeal urged before the Lower Appellate Court by the defendant, and we do not think that any question of fact was raised in the appeal for the decision of which a remand world be necessary.
19. The questions raised were all in substance questions of law which have been disposed of by the observations made above.
20. The result then is that the decree of the Lower Appellate Court will be set side, and that of the first Court restored with costs in this and the Lower Appellate Court.
