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Revision Application No.56 of 1987, decided on 6th April, 1987.
---S.12--Easement--Right of easement, held, could only be acquired by owner of building--A lessee not being owner of building could not acquire such right against his lessor over adjoining property owned by such lessor.
A I R 1943 Bom. 443 rel.
A I R 1941 Sind 211 ref.
Syed Azizul Hassan for Petitioner.
Syed Hasan Asghar Rizvi for Respondents.
The applicant, in this Revision Application, had filed a suit No.645 of 1986, in the Court of VIIIth Senior Civil Judge, Karachi (South), for declaration, that he had rights of easement of air and light with respect to the tenement in his possession, and prayed for. permanent injunction, restraining the respondent from raising constructions in front of his balcony and from disturbing his privacy of open space, air and light. The plaint was rejected by the learned trial Judge under Order VII, R.11 C.P.C. holding, that the applicant being a tenant could not acquire any right of easement against the landlady. His appeal was also dismissed by the learned Ist Additional District a Sessions Judge, vide impugned judgment, dated 30-11-1986 on the same ground.
I have heard the learned counsel for the parties.
Admittedly, the applicant is tenant of the respondent with respect to the tenement, which is in. his occupation for more than 20 years, for which he claims right of air, light and privacy. The right of easement can be acquired under section 12 of the Easements Act, which provides, 'an easement may be acquired by the owner of immovable property for the beneficial enjoyment of which the right is created or on his behalf by any person in possession of the same.' Both the learned Courts below held, that the applicant not being owner of the property in question, could not have acquired any right of easement under section 12 against his landlord. Reliance is placed upon A I R 1943 Bombay 443, wherein it is held, 'an easement of light, like any other easement, must be acquired under section 12 by the owner, or on his behalf by the person in possession. Therefore, if the lessee acquires a right to light, he acquires it on behalf of the owner which means the absolute owner and he cannot acquire it on behalf of the owner as against such owner. A man cannot acquire an easement as against himself. Under the Easements Act a lessee cannot, therefore, acquire a right to light over adjoining property, which belongs to his landlord."
The learned counsel for the applicant has relied upon A I R 1941 Sind 211 where a lesseer was held. to have acquired right of easement with regard to the light, air and support of the building owned by him against the land of lessor, who was municipal committee. However, in this case the lessee was owner of the building, who, even under section 12 of Easement Act could acquire such right of easement. The statute as well as case law is clear on the subject, that the right of easement under section 12 can only be acquired by owner of building. The applicant, who admittedly, is not owner of the building cannot acquire such rights against his lessor.
Under the circumstances, there is no merit in this Revision Application, which is dismissed in limine.
M.Y.H./S-27/K Petition dismissed.
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