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Civil Revision No. 91 of 1981, decided on 24th October, 1982.

-- S. 115-Revision-First appellate Court taking view contrary to evidence recorded by trial Court-Such view, held, not sustainable. (Evidence).

(b) Easements Act (V of 1882)-

----S. 15 and Civil Procedure Code (V of 1908), S, 115 and O. XXXIX, rr. 1 & 2-Suit for injunction-Infringement of right of light and air-Substantial damage, nuisance or material physical discomfort not caused to respondent as result of removal of air-catcher by appellant-Stoppage of light not proved - Only partial stoppage of air causing no physical discomfort, held, would not entitle respondent to maintain a suit for injunction.-[Injunction)

P L D 1967 Kar. 233 ; A I R 1914 P C 45 ; Muhammad Munir v. Ahmed Ali Memon and others P L D 1982 Kar. 425 ; A I R 1941 Sind 211. and Hap Sir Abdullah Haroon v. Municipal Corporation, Karachi A 1 R 1941 Sind 211 rel.

Riaz Ahmed for Applicant.

S. A. Jamali for Respondents.

Date of hearing : 4th October, 1982.

This revision application is directed against the order of learned District Judge, Hyderabad in Civil Appeal No. 11411978 dated 22^nd December, 1980 whereby the learned District Judge had accepted the appeal of the respondents and set aside the order of the trial Court i.e. Civil Judge, Hyderabad in Suit No. 254/1975 dated 7th February, 1978 whereby the learned Civil Judge had dismissed the suit of the respondents for mandatory injunction. The brief facts which have led to the filing of this petition are as under :---

A building situated in Chhoti Gitti, Hyderabad bearing City Survey No. B 1303-1304 consisted of two floors. The respondents Ali Muhammad and Abdul Sattar were in joint possession of the first floor of this building since 1952 while applicant Abdul Ghani was in possession of the second floor consisting of one room. The first floor was transferred by the Settlement Authorities to respondent No 1 on the basis < .f .his possession and a P. T. D. was issued to him on 4th July, 1971 for the portion in his possession which consisted of one room, kitchen, joint outhouses and courtyard on the first floor of House No. B/1303-1304. The applicant also applied for the transfer of the room in his possession on the second floor to the Settlement Department. The latter transferred the same to the applicant and a P. T. D. was issued to him on 13th September, 1971.

2. The case of the respondents in their suit was -that they are both brothers and have been living jointly in the first floor of the building of which they are the owners and that since pre-partition days they have been enjoying the benefit of air through a wind-catcher (Magh) which was constructed on the third floor passing through the applicant's room and ending in the room of the respondents. It was further alleged that the respondents had been using the facility of air through this wind catcher for more than 20 years before filing of the suit. It was further alleged by the respondents that in the month of March, 1975 they went to see their mother who lived in another house in Daulatram Lane, Hyderabad and that taking advantage of their absence from the house in dispute, the applicant removed the wind-catcher with the result that the passage of air and light to the house of the respondents was totally blocked. The respondents came to know of the closure of the wind-catcher after one month in April, 1975 and applied to the authorities i.e. the Police and the Municipality to compel the applicant to re-open the wind catcher. He also sent notice to the applicant to this effect but with no result. Hence the respondents filed the above quoted suit i.e. Suit No. 254/1975 in the Court of Civil Judge, Hyderabad claiming the following reliefs :-

(a) The defendant may be directed to open the Magh in the southern and eastern corner of his room over the first floor room of the plaintiffs in house No. B11303-1304, Chhoti Ghitti, Hyderabad and to construct a column in his (defendant's) room for that purpose upto the roof and the aircatcher and to do all other acts to enable the plaintiffs to enjoy right of easement of light and air from the aforesaid Magh and aircatcher.

(b) The defendant may be permanently restrained in future from interfering with the right of easement of light and air from the aforesaid Magh and aircatcher which is appurtenant to the room of the plaintiff on first floor of House . No. B 1303-1 304, Chotti Ghitti, Hyderabad."

3. The plea of the respondents was that the closing of the wind- catcher has materially interfered with their physical comfort and is injurious to their health and that the applicant has also deprived them of the open portion of the roof of their portion of the building which the applicant has included in his house as courtyard of his room on the third floor. However; the respondents have not claimed any relief in respect of their alleged right to use the roof of their house which is said to be courtyard of the house of the applicant.

4. The applicant filed written statement before the learned Civil Judge in which be admitted that originally there was a wind-catcher in the house in question as alleged by the respondents and that it was closed with the consent of the respondents because the room of the applicant was very small and the wind catcher had occupied quite lot of space of his room, leaving very little space for his use as the area of his room had been considerably decreased. He has denied that this Magh was used for the passage of light and air by the respondents for the last 20 years. On the contrary it was alleged that it was being exclusively used by the applicant alone for his room. It was denied that the closure of this wind catcher has resulted in any stoppage of light and air to the respondent's room. He has taken certain other pleas also which are reflected in the issues framed by the learned Civil Judge in the. suit. -The issues are as under :. ,

(1) Whether the suit is time-barred

(2) Whether the suit is bad -for misjoinder of plaintiff No. 2

(3) Whether the suit is barred under the provisions of Specific Relief Act and under the provision of D. P. (Compensation & Rehabilitation) Act, 1958

(4) Whether the suit is not in proper form

(5) Whether 'Magh' in dispute was lying closed before partition of India

(6) Whether the defendant removed the ' Magh' with the consent of defendant and hence plaintiffs are estopped from filing the present suit

(7) Whether the closing of 'Magh' has interfered with the physical comfort of the plaintiffs and is injurious to their health

(8) What should the decree be "

5. After recording evidence, the learned Civil Judge decided Issues Nos. 1 to 6 in favour of the plaintiffs/respondents, but the material issue i. e. Issue No. 7 was decided against them and consequently their suit was dismissed. Before deciding the suit the learned Civil Judge had also inspected the site in order to appreciate the respective averments of the parties. The learned Civil Judge based his finding on Issue No. 7 mostly on the inspection notes prepared by the predecessor of the Civil Judge, who had decided the case. It will be appropriate to reproduce the inspection notes which are relevant for the purpose of determining the claim of the respondents regarding stoppage of air and light. The site was inspected on 19th August, 1976 and the notes are Exh. 29 in the lower Court's record which are to the following effect:-

"Visited the site in presence of parties and Advocates. The house of plaintiff is on 1st floor. It is a small room. In the western wall there is a door and big window which is open. In the eastern wall is a door which was closed and is not used. For exit and entrance to the room is door in the northern wall and also window which remains closed. In the south eastern corner is a small apace of about 2 feet over which the 'Magh' was constructed and now it has been closed. The house of defendant is above this room and the front portion of plaintiffs house. The remains of 'Magh' are there but the room is very very small with one cot and one sofa it has hardly space to walk in. While I was present in the house of plaintiff I found that there was broad daylight in the room and air was passing through. There is an open courtyard in front of the room of the plaintiff."

6. Besides relying on the above notes the learned Civil judge has also referred, to evidence on record and described the position of the room of the respondent in which there are two big windows towards the West, two windows and one door in the northern side and one door on the eastern side opening towards the stairs case and another door opening in the Balcony. The learned Civil Judge also believed the statement of the applicant that if the door on the eastern side, which the respondents used to keep closed, is opened then there will be sufficient light and air in the room in spite of the closure of the Magh. This assertion of the applicant in his deposition was not challenged by the respondents in cross-examination. Therefore, the learned Civil Judge, relying on P L D 1967 Kar. 233, concluded that the averment of the applicant regarding air and light to the respondent's room as a result of opening of the eastern door, was proved. The learned Civil Judge, however; observed that from perusal of the inspection notes it was quite clear that the closure of the Magh has not materially affected the physical comfort of the respon dents or the passage of air and light to their room. The learned Civil Judge also relied on a Privy Council case reported in A I R 1914 P. C. 45 wherein it was laid down that infringement of the right of light would not be actionable unless it is proved that the infringement amounted. to a nuisance. The Civil Judge was, therefore, of the opinion that such closure of the Magh has not resulted in any stop page of light and air to the respondent's house and that the respon dents were not entitled to the equitable relief of a mandatory injunc tion as prayed by them in the suit.

7. Against this decision the respondents filed appeal before the learned District Judge, Hyderabad who .reversed the finding of the Civil Judge and decreed the suit of the respondents for permanent injunction by deciding the said issue No. 7 in favour of the respondents. The learned District Judge did not refer to the evidence or. rely on the inspection notes which were taken into consideration by the trial Court in dismissing the suit of the respondents. He rather used his personal knowledge about the system of wind-catcher obtaining in the southern part of Sind as an 'architectural device' for drawing air to their premises. It would be advantageous to reproduce the relevant portion of the judgment of the learned District Judge in this behalf which reads as under :-

"It is an admitted position 'that the building was evacuee property and it was acquired by the parties under the Settlement and Rehabilitation Laws. It is an undisputed fact that the system of air-catcher was original architectural device to draw sir to the premises as to make living comfortable, keeping in view the other ventilative system in the premises. As such, it cannot be denied that the closing of the air-catcher must have caused diminution of the supply of the air to the premises, resulting in physical discomfort to the inhabitants. Of course, the appellant's premises was found getting air across .windows and doors, as observed by the Judge, who inspected the premises, but the supply of the air through the air-catcher could not find substi tution by air through windows and doors."

It would appear from the above observations that the learned District Judge did not hold that the removal of the wind-catcher has resulted in total stoppage of the light and air to the respondents' room. According to him there bad been only diminution of air to their house. The view taken by the learned District Judge, being contrary to evidence recorded by the trial Court to which reference has already been made, cannot be sustained.

8. Reference in this connection has been made by the learned counsel for the appellant to a recent case decided by a Single Judge of this Court i. e. Muhammad Munir v. Ahmad Ali Memon and two others L D 1982 Kaf. 425 in which the learned Judge has held that the test for determining whether a particular building infringes the right of light and air of a neighbouring house owner, is whether the obstruction complained of amounts to nuisance. It was further held that partial impairment of light and air would not be treated as an infringement of the right of easement. The learned Single Judge, while taking the above view, had relied on A I R 1914 P C 45 and A I R 1941 Sind 211. I am in respectful agreement with. the observations made by the learned Single Judge in the above case which are supported by the law laid down in, this behalf by the Privy Council and also by the Sind Chief Court. In the case of P. C. E. Paul and another v. W. Robson and others A I R 1914 P C 45 the Privy Council held as under :--

"The owner of the dominant tenement is entitled to the unin terrupted access through his ancient windows of a quantity of light, the measure of which is, what is required for the ordinary purpose of inhabitancy or business of the tenant according to . the ordinary notions of mankind. The single question in these cases is, whether the obstruction complained of is a nuisance."

The principle which applies to the right of light - would also apply to the right of air. In the case of Hali Sir Abdullah Haroon v. Municipal Corporation Karachi A I R 1941 Sind 211 a D. B. of the erstwhile Chief Court of Sind held as under :-

"In a suit, for disturbance of an easement of light and air domi nant owner must show that substantial damage amounting to a nuisance had been suffered by him. And, in order to establish substantial damage, the plaintiff must prove material diminution in the value of his heritage or material interference with his physical comfort which could be ascribed to the interruption of the free passage of light and air. The state of the property at the time of the alleged disturbance of the easement has to be looked to, not as it was before or as it might be at a future date.

The windows of the dominant, tenement were regarded as wholly useless by the tenants in actual occupation of the premises.

They preferred to have the windows bricked up rather than to wake advantage of them as an amenity for the use of light and air. The light and air available to these premises such as they were, was regarded as amply sufficient for their purpose. Subse quently by the construction of a wall by the Municipality these windows were blocked

Held that no substantial damage had been shown to result to the dominant owner a:, the result of the disturbance alleged as required under sections 33 of the Act."

In view of the above decisions which are fully applicable to this case, the order of the learned lst Appellate Court cannot be sustained. From the record of the trial Court it is quite obvious that neither substantial damage or nuisance has been proved nor it has been estab lished that material physical discomfort has been caused to the respondents as a result of removal of the wind-catcher. At the most it can be said that there has been a partial stoppage of air to the house of the respondents. Stoppage of light has not been proved at al because wind-Catchers are never intended for getting light. Only partial stoppage and that also of air, which has not been proved to have caused any physical discomfort to the respondents, would not entitle the respondents to maintain a suit for injunction. The result, therefore, is that the revision petition is allowed; the order of the Ist Appellate Court is set aside and that of the trial Court is restored and the respon-1 dents' suit stands dismissed with costs through out.

K. M, A- Appeal accepted.

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