1984 PLP 3244 (CLC)

(a) Easements Act (V of 1882)‑ ‑‑‑ Ss. 7, 15 & 17‑Infringement of right of light and air‑What constitutes‑Held, it was not enough for plaintiff to show that light and air is less than before but to constitute actionable obstruction of free passage of light or air to openings in a house there must be substantial deprivation of light enough to render occupation of house uncomfortable according to ordinary notion of mankind‑Even though a right of easement of light and air was established, a person, held further, was not entitled to an injunction unless disturbance of his casement materially affected his enjoyment. Muhammad Munir v. Ahmed Ally Memon P I, D 1982 Kar. 425 and Hakomal v. Tarachand A I R 1938 Sind 37 rel. (b) Easements Act (V of 1882)‑ ‑‑ S. 33, Explanations 11 & 111‑Civil Procedure Code (V of 1908), O. VI, r. 2‑Pleadings‑Dominant owner in order to claim right of air and light should specifically plead that action of servant owner had not only reduced light and air but has also made occupation of his uncomfortable according to ordinary notions‑Plaintiff taking no such plea was not entitled to injunction, ‑‑ Ss. 7, 15 & 17‑Right of privacy or purdah‑Customary right of easement of purdah or privacy has to be pleaded and proved by evidence‑Such custom should be specific, certain and continuous from time immemorial‑Such customary right, held, is different from easement acquired by prescription. Harisedhan v. Radhika Parsad 66 C L C 270 and Abejuddin Shah v. Abdus Subhan Sarkar P L D 1967 Dacca 135 ref. Munawar Abbas for Applicant. By this Revision Application the applicants who are legal representa tives of Khatumal have challenged the decision of first Additional District Judge Sukkur, dated 4th October, 1973 in Civil Appeal No. 127/71 whereby the learned Additional District Judge had set aside the judgment of Civil Judge, Ghotki, dated 30th November, 1971 in Civil Suit No. 77 of 1970 and decreed the suit of the respondent for permanent injunction. The houses of the parties are adjacent to each other. They are divided by a partition wall which is presently 12 feet high. The house of the appellant is situated on the South of that of the respondent. The appellant wanted to raise the .height of the said wall to more than 12 feet whereupon the respondent filed the suit for permanent injunction and declaration. In this plaint, the respondent sought inter alia, the following reliefs:‑ (a) To declare the plaintiffs as dominant owners having easement rights on the partition wall of the defendant in respect of privacy, light and air and other necessary beneficial enjoyments attached to the wall. (b) To issue permanent injunction against the defendant restraining him for raising the wall above the height of 12 feets.

2. The learned Civil Judge inspected the‑site and recorded the evidence of the parties and came to the conclusion that the raising of the height of the disputed wall shall not in any way, affect the light, air to or privacy of the respondent's house. The reason given by the learned Civil Judge was that the house of the appellant is situated on the south of the respondent's house whereas the direction of the wind during most of the period of an year is from the South‑west. Hence he was of the view that raising of the wall in question shall not materially affect the light and air to or privacy of the respondent's house. On these findings the learned Civil Judge dismissed the suit of the respondent.

3. The respondent filed appeal before the First Additional District Judge Sukkur who was of the view that the direction of wind during most of an year remains from South to North, therefore, raising of the wall would affect not only light but also air to the house of the respondent. On the above view of the matter the learned Additional District Judge decreed the suit of the respondent and restrained the appellants from raising the height of the wall beyond 12 feet which was existing height.

4. The appellant has challenged the above decision of the first Appellate Court by this Revision application on inter alia the following grounds :‑ (1) That the wall having already been raised to height of 22 feet, the suit for the permanent injunction has become infructuous. (2) That the judgment and decree of the Appellate Court is contrary to the provisions of the Easements Act, 1882. (3) That the order of the first Appellate Court is in disregard of the fundamental law. (4) That the judgment of the learned Appellate Court is based on no evidence. It would be advantageous to refer to the relevant provisions of the Easements Act applicable to the present case :‑

7. Easements restrictive of certain rights.‑Easement 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 of any law for the time being in force) to enjoy without disturbance to another the natural advantages arising from its situation. 15. .4cquisition by prescription.‑Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto as easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto as an easement, and. as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit where in the claim to which such period relates is contested. Explanation l.‑Nothing is an enjoyment within the meaning .of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to ‑a condition on the fulfillment of which it is to cease. Explanation II.‑Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made. Explanation Ill.‑Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV.‑In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words "twenty years" the words "sixty years" were substituted :‑

17. Rights which cannot be acquired by prescription.‑Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired--‑ (a) a right which would tend to the total destruction of the subject of the right,. or the property on which, if the acquisition were made, liability would be imposed ; (b) a right to the free passage of light or air to an open space of ground ; (c) a right to surface‑water not flowing in a stream and not perma nently collected in a pool, tank or otherwise ; . (d) a right to underground water not passing in a defined channel.

18. Customary easements.‑An easement may be acquired in virtue of a local custom. Such easements are called customary ease ments.

33. Suit for disturbance of easement.‑The owner‑ of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the ease ment or of any right accessory thereto ; provided that the distur bance has actually caused substantial damage to the plaintiff: Explanation I:‑The doing of any act likely to injure the plaintiff by~" affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage is substantial damage within the meaning of this section and section 34._ Explanation II.‑Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation; or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. Explanation III‑Where the easement disturbed is a right to the free passage of air to. the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.

5. In this connection reference has been made by Mr. Munawar Abbas, learned counsel for the applicants, to the case of Muhammad Munir v. Ahmed Ally Memon (P L D 1982 Kar. 425) in which the rights of air, light and privacy of the owner of a dominant heritage against the owner of servient heritage have been exhaustively dealt with.

6. So far as the claim of light and air is concerned, it has been held in the above case, with the reference to the case of Calls v. Homes (1904 A C 179) as under "As to the light and air through the windows on the western side, it is clear from Explanations II and III to section 33 that to cons titute an actionable obstruction of free passage of light or air t the openings in a house it is not enough that the light or air i less than before. There must be a substantial privation of light, enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind." It would thus appear that the dominant owner, in order to claim right of air and light, should specifically plead that the conduct or action of the servient owner has resulted in not only reducing the light and air but has also made the occupation of his house uncomfortable according to ordinary notions. This fact shall also be clear from Explanations Il and III to section 33 of the Act, which have been quoted above, in which it has been laid down that in order to establish a claim to light and as to his house, a person should prove that the action of the servient owner has interfered materially with the physical comfort or prevented him in carrying on his accustomed business in the dominant heritage beneficially as he had done previous to instituting the suit. Reference may also be made to the case of Hakomal v. Tarachand (A I R 1938 Sind 37) it was held:‑ Even though a right of easement of light and air is established, a person is not entitled to an injunction unless the disturbance of his easement appreciably and materially affects his enjoyment of the building in respect of which the easement is claimed." A bare perusal of the plaint of the respondent would show that no plea has been taken that as a result raising of the wall by the appel lant, the life of the plaintiff shall become uncomfortable or that he shall not be able to carry on his accustomed business as usual or that his physical comfort shall be materially interfered with. Unfortunately the first Appellate Court has failed to take into consideration the statutory provisions of section 33 of the Act.

8. So far as the right of privacy or Pardah is concerned follow ing observations from Muhammad Munir's case cited above, are reproduced :‑ "It is, therefore, now well‑settled that in order to rely on customary easement of pardah or right of privacy it has to be pleaded and proved by evidence. Such custom should be specific, certain and continuous from time immemorial. Such customary right is different from easement acquired by prescription as observed in Harisedhan v. Radhika Parsad 66 C L C 270 and Abejuddin Shah v. Abdul Subhan Sarkar P L D 1967 Dacca

135. In cosmopolitan towns like Karachi it is difficult to claim right of privacy attached to the property Ref. Mian Hafizullah v. Muhammad Hussain 1938 P L R

483. As observed in Nihalchand v. Fazal Din 1901 P L R 671 the plaintiff claiming customary right of domestic privacy should prove that such custom prevails and is in operation in the community or section of the society to which he belongs and it has gained such currency and notoriety amongst this community and locality that by common consent it is obligatory on the owners of land in that locality to observe, respect and implement it." In this respect also perusal of the plaint shows that the respondent has not raised any specific plea about the customary right of pardah. Even in his evidence the respondent has not made any reference to such customary practice. 9: In view of the above legal position the order of the First Appel late Court cannot be maintained. Consequently, the revision applica tion is allowed, the order of the First Appellate Court is set aside and that of the trial Court is restored with costs. M. B. A. Revision allowed.