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Mohamed Gani vs Habibullah And Anr. on 13 November, 1998

Madras High Court
Mohamed Gani vs Habibullah And Anr. on 13 November, 1998
Equivalent citations: (1999) 2 MLJ 609
Author: K P Sivasubramaniam

JUDGMENT

K. P. Sivasubramaniam, J.

1. This second appeal is directed against the judgment of the learned Subordinate Judge, Madurai in A.S.No. 60 of 1985 in reversing that of the learned District Munsif, Thirumangalam in O.S.No. 936 of 1983. The plaintiff is the appellant in the present second appeal.

2. The plaintiff filed the suit for mandatory injunction for directing the defendants to remove the obstruction to the windows on the plaintiff’s property, on the north side or for the court itself to direct the court staff to carry out the said direction, for permanent injunction restraining the defendants from interfering with the plaintiff’s putting up upper floor in his property and putting up windows on the north side of his property and for mandatory injunction directing the removal of the newly put up common wall on the north side of the plaintiff’s property and to restore the common pathway in between the plaintiff’s property and defendants’ property.

3. According to the plaintiff the property situated at door No. 2/77 of Vilacherry Village belongs to the plaintiff while the defendants are his neighbours as well as his close relatives. On the east and north of the plaintiff’s property, the house and the cattleshed of the defendants are situated on the eastern side of the plaintiff’s property. The house of the defendants is constructed on the wall belonging to the plaintiff with the permission of plaintiff’s family. On the northern side of the plaintiff’s house, there is window of the size 3 feet x 2 1/4 feet which was constructed in the year 1960. The plaintiff as well as his brothers who were earlier living in the house prior to a partition in the family, were in the enjoyment of light and air through the said window as an easementary right. The plaintiff has now commenced the construction of upper portion. On the northern side of plaintiff’s property, there was a common passage of a width of 4 feet and in fact the said passage was being used in common by all the pangalis to reach the place of worship. But the defendants have high-handedly intruded into the passage and constructed a compound wall. In spite of several demands, the defendants did not remove the wall. This passage was earlier enjoyed in common by both the parties. Recently, some misunderstandings arose between plaintiff’s sister’s husband and the defendants family. As a result, the defendants on 6.10.1983 had forcibly closed the window on the northern side of the plaintiff’s house and they had also obstructed the plaintiff from putting up further construction on his own property. A complaint given to the police was in vain and therefore according to the plaintiff, he was enjoying his easementary right of light and air through the said windows over the statutory period and as a result of the obstruction to the window, the plaintiff and his family members are subjected to the immeasurable loss. The defendants have no right either to block the free flow of light and air nor they had any right to prevent the plaintiff from putting up any constructions in his own property. Hence the suit.

4. In the written statement, the defendants denied the plaintiffs claims. According to them, their house and cattleshed are situated on the north and eastern side of the plaintiff’s house. It was stated that even several decades earlier, the plaintiff’s grand-father attempted to put up a construction on his property but as the area was not sufficient, has approached the defendants’ grandfather and requested him to give him sufficient space over the defendants’ property. Because of his close relationship, his request was agreed upon. At that time itself, it was agreed that in future if he (defendants’ grandfather) or his dependants who put up construction, they can do so by connecting the construction over the wall in the plaintiff’s property on the northern and eastern side. This agreement was reduced into writing in 1921 itself, i.e., on 5.5.1921. It was only pursuant to the said agreement even while putting up the construction in 1942, the construction was put up touching the plaintiff’s wall. Plaintiff’s grandfather gave the southern portion of his property to his first wife and northern portion, a vacant site, to his second wife. Thereafter in 1968, plaintiff’s father put up the construction. But taking advantage of the fact that the defendants’ father was away at Malaysiya and the defendants were small children at that time, the plaintiff’s father had managed to put up the window on the northern side. Defendants immediately complained about this to the elders in the locality as it was violating the privacy of their womenfolk in using the bath room and the lavatory and free movement of their people in their house and as such the plaintiff themselves had voluntarily closed the window with wooden planks. It was closed immediately after putting up the window and therefore according to the defendants, it was false to contend that the plaintiff was enjoying the light and air through the window. The plaintiff’s claim of existence of common pathway was also denied and the allegations that the defendants have trespassed into the property and they had put up a wall in the year 1981 was also denied. It was true that there were misunderstandings between the parties and only with a view to create problems further constructions were put up with window on the northern side which was successfully prevented by the defendants, and aggrieved by the same, the plaintiff had filed the present suit. It is further contended that in fact, it was the plaintiff who had encroached an extent of 1 1/2 feet into their property.

5. The trial court on a consideration of the said pleadings, oral and documentary evidence came to the conclusion that the plaintiff had a valuable right and upheld his claim of easementary right and the suit was decreed as prayed for. However, on appeal the learned Subordinate Judge, Madurai has reversed the findings and stated that the putting up construction as well as the windows on the northern side would affect the privacy of the defendants. With the result, the appeal was allowed and hence the present second appeal.

6. In the present case, during trial a Commissioner was also appointed and the Commissioner has filed a preliminary report as well as the final report. But the report deals only with the physical features. Though in the final report, he has mentioned about the existence of the window, on the western side of the room in which the disputed windows (closed) is found, in the interim report he has stated that there was no sufficient light. In the final report also he has stated that there was no sufficient light on the side of the staircase. As regards the probable age of the wooden planks used for closing the window, he has stated that some of them appeared to be old while some of them were new. In other aspects, the report of the Commissioner is not of much use.

7. As far as the claim of the plaintiff seeking mandatory injunction for the removal of the wall said to have been put up by the defendants on the alleged common pathway, it can be easily disposed of for the reason that there is no satisfactory evidence on the side of the plaintiff regarding the existence of the common pathway. Even on the basis of his own allegation in the plaint, the wall was put up in 1981-82. The suit itself has been filed only on 22.10.1983 and there is no justification for claiming mandatory relief in the said context.

8. Therefore, what remains to be considered is as to whether the defendants are entitled to object or resist the plaintiff from keeping the window open which was already in existence and alleged to have been closed recently by the defendants and whether he can be prevented from putting up further construction above the existing house with windows on the northern side.

9. As regards the existing window, both sides agree that the window was put up at least in 1963, even though in the written statement the defendants have stated that the window was put up in 1968. While according to the plaintiff, it was closed forcibly only recently, the defendants would state that the windows were closed by the plaintiff himself immediately after it was put up in 1963. In this context, Ex.B-3 is filed on the side of the defendants. It is a letter dated 25.6.1963 which is said to have been sent from Malaysiya by the father of the defendants to the District Collector with a copy marked to the Tahsildar and the President of the Village Panchayat Board objecting to the plaintiff putting up the window. This evidence was rightly rejected and not taken into account by the trial court. No one connected with the document or with the despatch of the said letter or receipt of the said letter has been examined in evidence. A receipt issued by the post office at Malaysiya for having received three covers addressed to the three addressees are appended to the copy of the letter and it is needless to point out that the despatch receipt cannot be a proof of the addressee having received the latter. It is also not proved that the addressees had received the letter. There is also no proof that the letter marked as Ex.B-3 was really the letter concerned with the postal receipt. Lastly even taking for granted that such letter was despatched and received by the said officials, by no stretch of imagination it can be prove that the plaintiff had closed the window immediately thereafter. At best, Ex.B-3 can only substantiate that the window had been put up in 1963 itself and this fact only strengthens the case of the plaintiff that the window was in existence at least from 1963. The only other evidence on the side of the defendants is Ex.B-2. Ex.B-2 is alleged to be agreement executed on 5.5.1921 as between the grand parents of the plaintiff and the defendants, in which it is alleged that both parties had agreed not to install any window while any construction was put up in the premises. Though in Ex.B-2 a statement is made that on 5.5.1921, a registered agreement was executed between the parties, it is actually an unregistered document. This document which is disputed by the plaintiff, is not proved in accordance with law, D.W.1 to whom the document was marked frankly says that he was not present at that time when it was executed. He has also admitted that it does not contain the signature or the thumb impression of the plaintiff’s grandfather and also that the name of the stamp vendor was not available. None of the alleged witnesses had been examined. It is rather unfortunate that the appellate court had accepted both Exs.B-2 and B-3 which are totally inadmissible and has given utmost importance to those documents in setting aside the well considered judgment of the trial court.

10. As regards the oral evidence, neither D.W.1 (brother of the defendants) who was only 12 years only and D.W.2 (sister of the defendants) who was only 14 years old are not competent to speak about the alleged agreement under Ex.B-2 nor did they claim personal knowledge of the agreement. Their evidence is also not useful to the defendants in the context of the alleged closure of the window in 1963 itself pursuant to the panchayat. No panchayatdar was examined. While D.W.1 has given the names of panchayatdar as Ibram Shah, Vellaisamy, Kandasamy and Radar Rowyathar, D.W.2 has given the name of the Panchayatdar as Mumram Sahib. While in the plaint, it is stated that after the panchayat, the plaintiff’s people themselves had closed the window, in the oral evidence of D.W.1 it is stated that Panchayatdars closed the window. According to D.W.2 in 1963 it was their paternal uncle who was looking after the family. She cannot say to whom her paternal uncle objected to and demanded the closure of the window. Apart from the nature of the evidence of D.W.1 and D.W.2 the trial court had rightly rejected their evidence as also being directly interested. Therefore, the appreciation of the evidence of oral and documentary, by the appellate court is not sustainable. For the reasons already stated, acceptance of Exs.B-2 and B-3 is completely and legally vitiated on which much reliance has been placed upon by the appellate court. Therefore, they are not acceptable evidence on the side of defendants to substantiate their contention that the window was closed in the year 1963 itself. The question is as to whether the plaintiff has made out a case for upholding his claim of easementary right.

11. Admittedly, there is a compound wall in between the plaintiffs property on the north and the defendants open space which was put up in the year 1969 by the defendants according to the averments in the written statement. In the Commissioner Report, it is clearly stated that inside the plaintiff’s room where the window was closed, there was no sufficient light. There is no reference to any objection having been filed by the defendants against the Commissioner’s report. In these circumstances, the question is whether the plaintiff should be deprived of his right to have his natural right to the flow of air and light.

12. Learned Counsel for the appellant vehemently relied on the decision of the learned single Judge of Karnataka High Court in Dr. K. Panduranga Nayaka v. Smt. Jayashree and Ors. to state that claim for easementary right for light and air can be restricted only to vertical light and air and not to lateral or horizontal flow of light and air. In that case, the learned Single Judge was not only dealing with the claim of easementary rights but also had to decide rights of parties in terms of City of Municipal Corporation Buildings Bye-Laws (1983) and as to whether the impugned construction was consistent with the Bye Laws or not? The reasoning of the learned Judge for his observation that there was no question of a person having a right to light and air coming to his property laterally appears to be based on Illustration (d) to Section 7 of the Easements Act. To appreciate the scope of the said provisions, Section 7 is extracted below with Illustration (d):

Section 7: Easements restrictive of certain rights: Easements are restrictions of one or other of the following rights, namely:

(a) Exclusive right to enjoy The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

(b) Rights to advantages arising from situation. The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situations.

Illustration (d):

The right of every owner of land to so much light and air as pass vertically thereto.

13. The main Section 7 makes it clear that any owner of immovable property would have to right to enjoy all the natural advantage of the property and subject to the restrictions only by easement. In other words the natural advantages (also usually described as ‘natural rights’ or ‘natural easements’ are incidents of a property and inherently available to the owner of the property, subject to only the restrictions of easements. The Illustrations which are appended to the section are nothing more than illustrations and cannot be held as exhaustive. The mere mention of “light and air as pass vertically” cannot mean that light and air laterally or horizontally will not be natural advantage of a property. If such a reasoning is to be adopted, right to light and air would be available only to a roofless building. It is not possible to presume that the legislature intended any such drastic or restrictive meaning to the expression “natural advantage”. In fact in the Judgment of Karnataka High Court itself, there is a reference to a Judgment of a learned Single Judge of this Court reported in Moidin Kunhi and Anr. v. K. Gopalakrishna Mallaya, Minor and Anr. . The following extract from the judgment will be useful. In dealing with the right is light and air, the learned Judge has observed as follows:

That both of them constitute an adjacent to and are inherent in land ex jure nature and exist prima facie in all case as between the landowner and his neighbour and secondly that they can be acquired as an easementary right cannot be disputed.”…. ” But if a owner of the property acquires an easementary right in regard to air and light laterally coming to him, every owner of land or building has a natural right to light and air vertically coming to his property and this need not be acquired as an easementary right (Indian Easements Act, Section 7, Illustration (d) and makes the adjoining tenement a servient one on which the burden is cast of not doing anything which would prevent the exercise of that easementary right, he can come forward with a suit claiming his right to easement whenever that right is sought to be interfered with. But if a owner of a property happens to sleep over his rights for a period of 20 years and allows the adjoining owner or even the trespasser acquiring an easementary right to obstruct lateral light and air coming to him he would have been held to have acquiesced in it and he cannot turn round at the end of the period of 20 years and ask for his rights which have become extinguished by the acquisition of easementary rights by the other party to be protected by court (such rights may also arise under contract express or implied: Gampbell v. Peddington Corporation L.R. (1911) 1 K.B. 869.

In other words, the distinction between these two sets of rights viz., natural right and easementary right is this. In the case of an easementary right there is no distinction in case of interference with light and air about the adjoining occupier being either a trespasser or an owner. In either case if the complaining person had allowed the other person to obstruct for over a period of 20 years his right to relief becomes extinguished.

14. The following extract from Katiyar’s “Easements and Licences, XI Edition, 159 which in turn refers to several leading Rulings, will also be relevant.

Every owner or occupier of land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another’s land, unless he is under a legal obligation not to do so. Light and air are publici juris. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour’s right is the same as his own, but these rights of enjoyment are mutually qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and, air by an act of his neighbours, as by creating of a building, has still the right to much of light and air as come to him and he cannot complain of the obstruction however serious unless he can establish his title to an easement of light and air. The natural rights of property, as defined by the maxix “cujus est solum” ejus est usque ad coelum” enable a man to build as he pleases on his own land. It is well recognised principle that unless easementary rights to light and air are obstructed the adjacent owner has a right to put up his own well at the boundary of his property and the owner of the other adjacent property can have no grievance against the same.

15. Therefore, on an analysis of the law of easement of light and air it would be clear, that right to light and air laterally or horizontally, are no less natural rights or natural advantages attached to the property, subject only to the right of the neighbours to put up his own construction and subject to acquisition of easement by prescription as provided under Section 15 of Easements Act or the exitinction of easements provided under Chapter V of the Act. In the present case, there is evidence to show as admitted by the defendants themselves, that the window in dispute had been put up at least during January, 1963 itself. On an analysis of the evidence, I have already held that the defendants have not established that the window was closed in 1963 itself nor the defendants have proved their contention that the plaintiff’s predecessors had agreed not to put up any window on the northern side of the wall. Therefore, there can be no question of any waiver or extinction of plaintiff’s easementary right.

16. The learned Counsel for the respondents seeks to justify the claim of the defendants also of the basis of Section 18 of Easements Act. According to him, Pardanashin ladies were residing in the defendants’ property and they were using the bath room and lavatory put up in the open space on the north of the plaintiff’s property and as such their right of privacy would be very much affected, strictly speaking, there should be proper pleadings and proof of customary rights as would be available under Section 18 of the Easements Act. Except for stating that as Pardanashin ladies, they were entitled to privacy, no further pleadings are put forth and as pointed out by several Rulings under Section 18 of the said Act, customary rights should be properly pleaded and strictly proved and that such rights were being enjoyed in the area or in the District in question. But even the said defect could be ignored and it may be assumed in favour of the defendants that pardanashin ladies are entitled to some privacy. Even so, the existence of their rights cannot be assumed or presumed to extreme or oppressive limits, causing injustice to others. If one chooses to live in a crowded area, it is his or her duty to adjust and live with an attitude of “live and let live”. The present case is a specimen case of extreme and oppressive claim of privacy. The defendants insist upon using a roofless lavatory and also insist that their neighbours have no business to have any windows and consequently be deprived of fresh air and to live in semi-darkness. All that is required to be done by the defendants, is to put up a roofing over the lavatory. It is strange that the defendants should refuse to put up a roofing over their lavatory but should dictate to the neighbour that in his living room, he should live without a window and not be entitled to breathe fresh air. The fact that both the parties are on inimical terms is admitted and specifically pleaded by both parties and it is easily discernible as to way both have chosen to adopt a quarrelsome attitude, the plaintiff claiming right over the alleged common pathway for which there is no acceptable evidence and the defendants attempting to stifle the plaintiff’s right to fresh air and light. But the court cannot come to the rescue of the hatred between individuals and uphold the erroneous and exaggerated claims of right of privacy. Both parties are Muslims and relatives to each other and it is not as though the plaintiff is not aware of the sentiments of Pardanashin ladies.

17. In contrast to the decision of the Karnataka High Court relied upon by the learned Counsel for the respondents cited above, it is useful to refer to the decision of the Supreme Court reported in Smt. Anguri and Ors. v. Jiwan Dass and Anr. . In that case also, the question of right of privacy arising out of one party opening up the windows arose for consideration and it was held that it was open to the other party to protect their right of privacy by raising their walls. It was held that it was open to the parties opening new windows to use their property in any manner as permitted by law and it was equally clear that other party was fully entitled to block the same by raising the height of their walls. In the present case, as already pointed out, with very little expense, the privacy of the defendants could be protected by roofing the bathroom and lavatory, if not by R.C. at least by light roofing.

18. Therefore, I am unable to uphold the appellate courts misreading of the evidence pertaining to and accepting Ex.B-2 and B-3 and also erroneous appreciation of the law of right to privacy and easementary right of light and air.

19. With the result, the judgment of the appellate court is set aside and the decree of the trial court is restored subject to the rejection of the plaintiff’s claim with reference to the prayer in paragraph 10(c) of the plaint seeking mandatory injunction for the removal of the compound wall alleged to have been constructed by the defendants. In other respects, the suit shall stand decreed.

20. With the result, the second appeal is allowed. No costs.

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