{"id":241866,"date":"1953-02-04T00:00:00","date_gmt":"1953-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moidin-kunhi-beavy-and-anr-vs-k-gopalakrishna-mallya-minor-on-4-february-1953"},"modified":"2018-10-24T18:56:19","modified_gmt":"2018-10-24T13:26:19","slug":"moidin-kunhi-beavy-and-anr-vs-k-gopalakrishna-mallya-minor-on-4-february-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moidin-kunhi-beavy-and-anr-vs-k-gopalakrishna-mallya-minor-on-4-february-1953","title":{"rendered":"Moidin Kunhi Beavy And Anr. vs K. Gopalakrishna Mallya, Minor … on 4 February, 1953"},"content":{"rendered":"
Madras High Court<\/div>\n
Moidin Kunhi Beavy And Anr. vs K. Gopalakrishna Mallya, Minor … on 4 February, 1953<\/div>\n
Equivalent citations: AIR 1953 Mad 849, (1953) 1 MLJ 816<\/div>\n
Author: Ramaswami<\/div>\n
Bench: Ramaswami<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Ramaswami, J.<\/p>\n
 1. This is an appeal preferred against the decree and judgment of the learned subordinate Judge of South Kanara in A. S. No. 203 of 1946 confirming the decree and judgment of the learned District Munsif of Kasargod in O. S. No, 503 of 1944.\n<\/p>\n
 2. The established facts are : The plaintiffs have constructed a shop and a building in 1930 and adjoining their premises there was vacant poromboke land. Defendants have occupied this poromboke land and have put up a building, a portion of which they are using as a coffee hotel. There is no dispute that this was long subsequent to the construction of shop and building by the plaintiffs. In putting up that building, the defendants who are trespassers upon the poromboke property have done the following things. They have interfered with the walls of the plaintiff’s shop and building in order to raise their roof. In addition they have so put up their roof that they have practically cut off light and free air which used to enter the plaintiffs’ upstairs through the windows U and R; they have also constructed an oven in room L-2 and the smoke and offensive smell emanating therefrom gets through these windows into the upstairs of the plaintiffs’ shop making the upstairs uninhabitable and constitute an unmitigated nuisance. Therefore they came to Court with this suit for mandatory and permanent injunction in regard to the obstruction of light and air.\n<\/p>\n
 The contention of the defendants was that the plaintiffs have not acquired an easementary right for light and air and that they were within their rights in doing what they had done. Both the Courts have found that the plaintiffs’ version regarding the facts set out above is true and that the plaintiffs interfered with, in their natural right of enjoying the light and air and are entitled to the injunction asked for. Hence the appeal by the defeated defendants.\n<\/p>\n
 3. The sole point for determination before me is whether in order to maintain the suit the plaintiffs should have proved that they had acquired an easementary right to light and air.\n<\/p>\n
 4. In my opinion, the plaintiffs are not bound to show that they have acquired an easementary right in order to obtain the reliefs asked for by them and which have been granted. Here are my reasons.\n<\/p>\n
 5. The right to light and air as pointed out by Peacock in the law relating to Easements in British India (3rd Edn.) may be either a natural right forming one of the incidents Of property or it may be an easement. It is unnecessary for the purpose of this appeal to go into the question whether the popular amalgamation of both these rights in the phrasa “light and air” is accurate or inaccurate. It is enough to point out as mentioned in Combe’s Law of Light, page 15 that that phrase is misleading and these two easements though very similar are acquired under different circumstances. That both of them constitute an adjunct to and are inherent in land ‘ex jure naturae’ and exist ‘prima facie’ in all cases as between the landowner and his neighbour and secondly that they can be acquired as an easementary right cannot be disputed.\n<\/p>\n
 6. The distinction between natural rights and easements is drawn by Peacock on Ease-iments (3rd Edn.) at page 24 as follows :\n<\/p>\n
  “Natural rights are by law annexed to, and are inherent in, land ‘ex jure naturae’, of natural right, and exist ‘prima facie’ in all cases as between a landowner and his neighbour, otherwise, as Mr Goddard says in his work on Easements (Edn. 7 p. 3) no man would be assured that his land would not at any moment be rendered useless by a neighbour’s act otherwise lawful, or a neighbour might deprive a landowner of the benefit of certain things which in the course of nature have been provided for the common good of mankind.\n<\/p>\n
 Further, natural rights are rights ‘in rem’, that is, enforceable against all who may violate them and they are either affirmative, as rights to do something or negative, aa rights which every owner of immoveable property has, that his neighbour shall not disturb the natural conditions under which he enjoys his property.\n<\/p>\n
 Natural rights though resembling easements in some respects, are clearly distinguishable from them.\n<\/p>\n
 The essential distinction between easements and natural rights appears to lie in this that easements are ‘acquired restrictions’ of the complete rights of property, or, to put it in another way, ‘acquired rights’ abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of. the complete rights of ownership, belong to the ordinary incidents of property and are ‘ipso facto’ enforceable in law. Natural rights are themselves subject to restriction at the instance of easements.”\n<\/p>\n
 7. The basis for both these rights has been set out in — ‘Aldred’s case, (1738) 9 Rep. 57 b. (page 70 of Peacock on Easements) (A)’, where it was sot out that
\n  “in a  house   four  things are desired   — the habitation of man,   the  pleasure   of   the inhabitant,  the  light  and  wholesome  air,  and for nuisance done to the habitation of a man, for that is the principal end of a house, an action lies and so for the hindrance of light and air for both  are necessary”.\n<\/p>\n
  The natural corollary   of   these   natural rights is that they are subject to the rights of adjoining owners who for the benefit of the community hava and must have rights in relation to the use  and enjoyment of  their property that qualify    and    interfere    with    those    of    their neighbours’ rights to use their property in the various ways   in which   property is commonly and lawfully used  (per Bramwell  L.  J.  in –‘Bryant v. Lefever’, (1379) 4 C. P. D. 172 at P. 176  (B).    These principles were known and recognised in (1) Hindu Law (See Halhed’s Gentoo Law.   p.  1621    (2)   Muslim  Law   (See Hedaya, Hamilton’s  edition page  132)  and judgment at Norman    J.    in    –‘John    George    Bagram    v. Khettranath Karformah’,   3  Beng  LR   O. C. J. 18 at p. 37 (C) and Anglo Indian Law preceding   Indian   Enactments   relating   to   easements (Peacock on Easements, pp. 40 and 604).\n<\/p>\n
 8. There is, however, a fundamental feature in regard to the exorcise of natural right to lateral flow of air and light. If the owner of a property who is entitled to ancient lights the lateral passage of adequate light and unpolluted free air, finds himself obstructed to an appreciable and sensible extent by an adjoining trespasser then he can come forward and seek abatement of this private nuisance. If the person who is obstructing the light and air happens to be the owner of the property, then there can be no cause of action, the simple distinction being that that owner would also be entitled to build right up to the edge of his own property and exercise the same right as the complaining owner ‘cujus est solum ejusest usgue ad coelum et ad inferos’. –‘(1879)-4 C. P. D. 172 (B)’; –‘Sarojini Devi v. Kristalal’, AIR 1923 Cal 256 (D)  <\/p>\n
 9. 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, ill. (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 easa-mentary rights by the other Party to be protected by Court (such rights may also arise under contract express or implied : –‘Campbell v. Peddington Corporation, 1911-1-KB 869 (D-l)).\n<\/p>\n
 10. 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 othor person to obstruct for over a period of 20 years his right to relief becomes extinguished. In –‘Bliss v. Hall (1838) 5 Scott. 500 (E) : “twenty years user”, said Hart J. “would legalise (private) nuisance.” There can be no prescription to make a public nuisance (Gale on Easements Edn. 12, page 404). On the other hand, in the case of the natural right to right and air which is rested on the foot of the principles laid down in — ‘Aldred’s case (A)’, if even within the period of 20 years an owner finds himself cut off from light and air by an adjoining occupier who is a owner he is not entitled to any relief, On the other hand, if the adjoining owner is a wrong doer and is shutting light and air and causing a private nuisance interfering materially with the physical comfort of the plaintiff (–‘Framji v. Framji’, 7 Bom LR 352 (F); –‘Madhoosoodun Dey v. Bissonath Dey’, 15 Beng LR 361 (G), it is certainly open to this owner of the property suffering from that private nuisance to come forward and ask for proper relief which may be similar to the relief which would be granted in the case of easementary right namely injunction, or damages for actual injury sustained.\n<\/p>\n
 11. This has been laid down in series of decisions to which I will make a brief reference.\n<\/p>\n
 12. In –‘Acchanna v. Venkamma’, 5 Mad LJ 24 (H), it has been held by this Court as follows :\n<\/p>\n
  “The District Judge has found that the strip of land on which defendant has been attempting to build a wall (as in the instant case) is a piece of Government poromboke between plaintiff’s house and the public street and that it does not belong to defendant still. Such being the case we think the Judge was right in holding that it was not necessary for plaintiff to establish prescriptive rights of easement against a wrongdoer and that the mere fact of plaintiff’s enjoyment is sufficient to entitle him to an injunction. Sea –‘Jeffries v. Williams’. (1851) 5 Ex. 792 (I), Goddard 4th Edn. 467.”\n<\/p>\n
 13. The  next   case  is   that  of  –‘Bibby   v.\n<\/p>\n
Carter’,  (1859) 4 H & N.  153  (J), it was laid
\ndown that the
\n  “law   has been distinctly laid down in the case of –‘Jeffries v. Williams’, (I), (Goddard 4th Edn.. p. 467) and it would be mischievous to disturb it. We ought not to leave matters at large where there ‘ have been decided cases but abide by them”.\n<\/p>\n
 14. In –‘Dhuman Khan v. Muhammad Khan’, 19 All 153 (K), it was held that the owner of a house, the light coming to which obstructed by an erection made upon adjoining land by a person who, qua such adjoining land is a trespasser, may possibly have an action against the person causing obstruction, even though he has not obtained by prescription an easement of light, but where the person causing such obstruction is the; lightful owner of the adjoining land or acting with the permission of the owner, no such action as aforesaid will lie against him unless the plaintiff has acquired an easement. –‘Jeffries v. Williams’, (1851) 20 LJ Ex.14 (I) & 5 Mad LJ 24 (H), distinguished. It will be noticed that in this case the question whether the adjoining owner was a trespasser or an owner was gone into and that is why the distinction mentioned above was made.\n<\/p>\n
 15. The decision in –‘Kondappa Rajah Naidu v. D.K. Suryanarayana’. 34 Mad 173 (L), follows –‘5 Mad LJ 24 (H)’. There also plaintiffs had not acquired an casement of prescription in regard to the water course. The defendants who had no manner of right to the watercourse or the land over which it flowed obstructed the plaintiff’s user. It was held that the plaintiff was entitled to an injunction.\n<\/p>\n
 16. In –‘Mahaboob Khan v. Govindarajulu’, AIR 1936 Mad 142 (M). it was laid down very widely the proposition that the law does not know of any natural right apart from a right of easement with reference to a right of passage or right to light and air and in that no one can claim any natural right against another unless he establishes an easement to that effect. The learned Judge has not given any reason for stating this proposition and what is more as the proposition stands it is certainly oyposed to the many decisions cited above and to the principles laid down in well known commentaries upon Easements to which a reference will be made now.\n<\/p>\n
 17. I have already referred to Peacock on the Law relating to Easements in British India which begins the discussion regarding the Easements of Light and Air with the following striking sentence reproduced above, viz., the light and air may be either a natural right forming one of the incidents of property or it may be an easement. Then the learned author starts with the proposition that the owner of land can take and use for his own property as much light and air as come within the boundaries of his land. It is apparent that the quantity of light and air available for his use is in a large measure dependent upon the acts of his neighbour. Then he proceeds to show that this “neighbour” may fall within two classes of persons, viz., owners of property and trespassers. In the case of owners no complaint can bs made on the ground of obstruction unless easementary right by exercise for over a period of 20 years has been acquired. Otherwise an owner-neighbour will b2 at liberty to build up   to the edge   of   his   property.   Quite different  will be the case if obstruction complained of is by a trespasser.   If the obstructing trespasser   has acquired   an   easementary right, the adjoining owner will have no remedy. But if   the trespasser   has   not   acquired   such   an easementary   right   action will He   against him. At page 607 Peacock points out :\n<\/p>\n
   “Similarly   the   obstruction   of   light   and   air before the acquisition of the prescriptive right may be actionable if caused by a trespasser,”\n<\/p>\n
 Again at page 70 Peacock observes:\n<\/p>\n
   “Though    the   acquisition   of   these   rights   in British India   by enjoyment   for a period  of 20 years   falls   within   the provisions of the Indian Limitation Act and Indian Easements Act, yet, if, as may be the case, these rights were to arise independently of those two Acts, similar   considerations   would   present   themselves   as to the manner of their origin,   as under the English  common law prior to  the English Prescription Act which has no force in British India.”\n<\/p>\n
 In Goddard on the Law of Easements (8th Edn) page 472, it is stated thus:\n<\/p>\n
   “It may be taken, then, as settled law, that an owner of buildings cannot maintain any action for removal of support against the owner of the adjacent or subjacent soil, until he has acquired a right to support for his buildings. This, however, is not the case if a wrong doer — a person who has no right in the soil–interferes with it, and by removing the support causes the building to fall, for, in such case, an action will lie against him at the suit of the owner of the damaged building, even though the latter has not acquired any right to support.”\n<\/p>\n
  Then coming to Gale on Easements (Edn. 12) Chap. 3, page 295, it is pointed out that,
\n   “By the laws of all countries, and by the English law at a very early period, it appears that an action would lie for the obstructing of ancient lights.”\n<\/p>\n
 Then at page 393 it is pointed out how notwithstanding the fact that right of easement has not been acquired, if the obstruction constitutes a nuisance, certainly a claim for that abatement in the shape of injunction or damages will lie. It need not be pointed out that what constitutes nuisance would be question of fact in each case — Per Lord Loreburn in -‘Polsue and Alfeini v. Rushmer’, (1907) A. C. 121 (N), quoting Lord Halsbury in –‘Colls v Home and Colonial Stores’, 1904 A. C. 179 (O)’. It must be an inconvenience materially interfering with the ordinary comfort physically of human existence. In other words the law would not favour the modes of the dainty and would only support the plain sober and simple notions among the people. ‘Lex non favet delicatorum votis’.\n<\/p>\n
 18. Then coming to Combe’s Law of Light, as already mentioned, it distinguishes between the easement to air and light. Even Combe’s discussion shows nothing more than that as between two owners, a landowner has no natural right to the continuance of the flow of air unobstructed by his neighbour’s building and he cannot acquire a general right but only acquire a right to the continuance of the passage of air through a strictly defined channel as otherwise legal easement would be too burdensome or indefinite to admit of its recognition in a Court of law (See –‘(1879)-4-C. P. D. 172 (B)’; –‘Hall v. Lichfield Brewery’, (1890)-49 LJ Ch 655 (P); –‘Roberts v. Macord’, (1832)-1 M & R 230 (Q); –‘Potts v. Smith’, (1868) 6 Eq. 311 (R); –‘Harris v. De Pinna’, (1836)-33 Ch. D 238 (S). It will be noticed that even here it is not stated that as against a trespasser there can be no action in regard to nuisance being caused by acts of his shutting light and air which has been found to be in -the instant case.\n<\/p>\n
 19. Therefore both the lower Courts have rightly appreciated the evidence and applied the correct principles of law and gave the plaintiffs the proper reliefs asked for by them.\n<\/p>\n
 20. There are no grounds to interfere in the second appeal and it is dismissed with costs. No leave.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Moidin Kunhi Beavy And Anr. vs K. Gopalakrishna Mallya, Minor … on 4 February, 1953 Equivalent citations: AIR 1953 Mad 849, (1953) 1 MLJ 816 Author: Ramaswami Bench: Ramaswami JUDGMENT Ramaswami, J. 1. This is an appeal preferred against the decree and judgment of the learned subordinate Judge of South Kanara in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-241866","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMoidin Kunhi Beavy And Anr. vs K. 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