Madras High Court
R. Pandian vs Nagammal And Anr. on 18 January, 1988
Equivalent citations: (1989)2MLJ241
JUDGMENT V. Ratnam, J.
1. The plaintiff in O.S. Nos. 68 of 1978. First Additional District Munsifs Court, Tiruchy. is the appellant in this second appeal. The appel lant is the absolute owner of door No. 65, Bishop Road, Puthur, Tiruchy. The respondents, related as mother and son, are the owners of door No. 64, Bishop Road, Puthur, Tiruchy, situate immediately to the east of the house belonging to the appellant. The appellant claimed that the eastern wall of his house belonged absolutely to him as exclusive owner thereof and also by continuous possession and enjoyment and acquisition of prescriptive title thereto. According to the appellant, an ancient window existed in his eastern wall at a height of 12' and through that window, his predecessors - in- title and himself have been getting free air and light without any obstruction whatsoever for over the statutory period, that the respondents attempted to construct a building in their site and in that process, a wall close to the eastern wall of the appellant was about to be raised without any regard for the rights of the appellant and the respondents had also scooped about 9" inside the wall on the eastern side for about a length of 20' and were hurrying with the construction with a view to obstruct the window in the eastern wall of the appellant. It was under those circumstances, the appellant instituted the suit praying for a declaration that he is the exclusive owner of the eastern wall of his house and that he had prescribed to an easementary right of free light and air through the window that existed in that wall and for a permanent injunction restraining the respondents from interfering with his possession and enjoyment of the wall as well as the window therein and for recovery of a sum of Rs. 50 for trespass and damage caused to the wall.
2. In the written statement filed by the respondents, they contended that door No. 64 and Door No. 65 originally belonged to one Parimanam Pil-lai having been purchased by him under a sale deed dated 29.11.1980 from one Appavu Pillai and pursuant to the partition between parimanam pillai and his younger brother Naga Pillai (grand father of the 2nd respondent), the preinises bearing door No. 64 corresponding to old Door Nos. 16 and 17 had been in the possession and enjoyment of the father of the 2nd respondent Ponnusami Pillai and from the year 1898 onwards, the wall had been enjoyed only as a common wall. Even the partition deed, according to the respondents, referred to the wall as a common wall and as such, the claim of the appellant that he is the exclusive owner of the wall was unsustainable. The respondents claimed that in the common wall, their forefathers have erected tiled structure and terraced portion by inserting rafters and beams and as the appellant is not the exclusive owner of the suit wall, he is not entitled to any of the reliefs prayed for in the suit. The window in question, according to the respondents, was put up recently a"d the appellant had other windows for getting light and air on the south, west and north and therefore, the appellant really no cause for complaint. The respondents reiterated their right to put up the building within their own limits and disputed the claim of the appellant for recovery of damages.
3. Before the trial court, on behalf of the appellant, Exhibits A.1 to A.6 were marked and the appellant was examined as P.W.I, while, on behalf of the respondents, Exhibits B.1 to B.3 were filed and the 2nd respondent gave evidence as D.W.I. A commissioner was also deputed to make a local inspection of the premises and he submitted his report and plan, which were marked as Exhibits C.1 and C.2. On a consideration of the oral as well as the documentary evidence as well as the features revealed by the report of the commissioner, the learned First Additional District Munsif found that the wall in dispute is the exclusive wall of the appellant, that the appellant had established an easementary right of light and air through the window in the disputed wall, that the respondents had trespassed upon the disputed wall and were liable for payment of damages, as claimed by the appellant. On the aforesaid conclusions, the suit was decreed as prayed for by the appellant. Aggrieved by this, the respondents herein preferred A.S. No. 75 of 1980 before the Sub Court, Tiruchi. The learned Subordinate Judge, however, differing from the conclusion of the trial court, held that the wall in dispute is a common wall and that the appellant is not exclusively entitled to it and further that even if the window in the wall in dispute was blocked by the respondents, the appellant would be getting sufficient light and air through the other windows and that there was no proof that the wall had been damaged by the respondents. On these conclusions, the appeal was allowed and the suitt instituted by the appellant was dismissed. It is the correctness of this, that is challenged in this second appeal.
4. Learned Counsel for the appellant first contended that the disputed wall belonged exclusively to the appellant and that the lower appellate court had not properly appreciated the documents in this regard. However, learned Counsel for the respondents submitted that the recitals in the ancient partition deed of the year 1898 clearly established that the wall in question is a common wall and therefore, the lower appellate court was right in its conclusion in that regard.
5. Admittedly door Nos. 64 and 65 belonged to Parimanam Pillai and his younger brother Naga Pillai. The 1st respondent is the widow and the 2nd respondent is the son, of one Ponnusami Pillai, the son of Naga Pillai.Parimanam pillai had a son by name Subbiah Pillai as well as a daughter Sowbagyam and the appellant is the son of the said Sowbagyam. Subbiah Pillai did not have any issues and he executed a will ExA2 dated 2.2.1950 in favour of the appellant. In Ex.A.2 the will under which the appellant claims, it has not been mentioned that the wall in dispute absolutely belonged to the testator. The appellant, examined as P.W.I, also admits that Ex.A.2 is silent regarding the exclusive title of the testator to the disputed wall. On the other hand, in the registered partition deed, Ex.B.l dated 24.1.1898, the wall in dispute has been described as common wall belonging to both the brothers, P225arimanam Pillai and Naga Pillai. Ex.B.2 (portions at page 3 of Ex. B. l) States as follows:
At the time of the partition, the shops bearing Door Nos. 16 and 17 had been allotted to Naga pillai, the grand father of the 2nd respondent and the shops bearing door Nos. 18, 19 and 20, were allotted to Parimanam Pillai, the maternal grand father of the appellant. The door numbers of the shops so alotted proceeded from east to west and the disputed wall was in existence in door Nos. 17 and 18, which belonged to Naga Pillai and Parimanam Pillai, respectively. The recitals in the partition deed thus clearly established that even as far back as 1898, the wall in dispute had been mentioned as a common wall. The window in the wall in dispute had been found to have been in existence ever since the construction of the house by the predecessors-in-title of the appellant. This is clearly established by the very ancient nature of the window, as could be seen from the report of the Commissioner. The lower appellate court was .therefore right in its conclusion that the wall dispute along with the window therein is common to the appellant and the respondents and that in the absence of evidence on behalf of the appellant to show that he had exclusively enjoyed the disputed wall by adverse possession, he cannot be heard to contend that he is exclusively entitled to the wall.
6. Learned Counsel for the appellant next contended that even on the finding of the lower appellate court that the wall in dispute is the common wall of the appellant and the respondents, a declaration to that effect should have been granted by the lower appellate court, instead of dismissing the declaratory relief prayed for by the appellant in respect of the wall in dispute in its entirety. Learned Counsel for the respondents however submitted that exclusive title was initially claimed by the appellant to the wall in dispute and the relief of declaration of joint title now prayed for on the basis of the finding of the lower appellate court if given, would be inconsistent and having failed on the question of absolute title specifically put forth, the appellant cannot be permitted to turn round and ask for relief on the basis of the finding arrived at by the lower appellate court. Reliance in this connection was also placed by the learned Counsel upon the decision in Elwnalai Chetty v. Naina Mudali 99 L.W. 703.
7. Initially no doubt the appellant came forward with the case that the wall in dispute belonged to him absolutely. However, on the basis of the recitals in the partition deed Ex. B. l, it has been earlier held that the wall in dispute is the common wall of the appellant and the respondents. The relief of exclusive title to the wall in dispute prayed for by the appellant originally is a larger relief and when it is found by the court that the wall in question is not the exclusive wall of the appellant, but the common wall of the appellant and the respondents, there is no jurisdiction to depreive the appellant of the lesser relief with reference to the disputed wall. To begin with, the appellant put forth his exclusive right to the wall in dispute; but if such a right is not made out on the evidence, it is difficult to deny the appellant even such rights in the disputed wall as have been made out on the evidence. The finding of the lower appellate court, accepted by this court, is that the wall in dispute is a common wall and the ends of justice require, consistent with that finding, the rights of parties should also be declared, as otherwise, their rights in the wall would continue to be left in a nebulous state, despite a finding to the effect that the wall in dispute is a common wall. There is no inconsistency in the claim for relief put forth by the appellant initially with reference to the wall in dispute and on the basis of the finding now arrived at. A larger relief had been prayed for by the appellant and when it is found that the appellant is entitled to a lesser relief, there could be no objection to the grant of the lesser relief to the appellant on the finding arrived at by the court. The ends of justice also require that relief on the basis of such rights, as have been established, should be given, though larger rights had initially been asked for, but had not been made out. The decision relied on Elumalai Chetty v. Naina Mudali 99 L.W.703 by the learned Counsel for the respondents does not compel the refusal of the lesser relief to which a party may be found entitled, though initially he had prayed for a larger relief. Therefore, there can be no impediment in granting a declaration that the wall in question, along with the window therein, is common to the appellant and the respondents.
8. Learned Counsel for the appellant next contended that the appellant had acquired an ease-mentary right to free light and air through the window without any obstruction whatsoever over the statutory period and that right also should be declared in favour of the appellant.,On the other hand, learned Counsel for the respondents submitted that the appellant and the respondents being co-owners with reference to the wall as well as the easementary right relating to window, for, the enjoyment of the right of light and air through the window is rreferable only to the ownership of it and not with the knowledge of the existence of a dominant and servant tenement and that such rights are exercised over property not belonging to him. Reference in this connection was also made to the decisions in Nageswara Rao v. Mamachandra Rao (1973) 2 An.W.R.58 : (1973) 2 A.P.L.J. 297 A.I.R. 1973 A.P. 86 and K. Mohideen v. M.M. Abdullah . Earlier, it has been found that the wall in dispute as well as the window therein is common to the appellant as well as the respondents. In other words, they are the co-owners of the wall as well as the window therein. The act of enjoyment of light and air through the window is thus referable to a purported character of owner and cannot be equated to acts of enjoyment by the owner of a dominant tenement with reference to a servant owner. Further, the right, in the case of a common wall with a window therein, as in this case, has been enjoyed through common property jointly owned by the appellant and the respondents and exercise of rights regarding light and air through acts with reference to such jointly owned property, cannot validate or support a claim to an easementary right. A division bench of the Bombay High Court in Narayan Balwant v. Shankar Raman AIR. 1938 Bom.215 has held that it is not possible for a person to acquire an easement of light and air through window in a joint wall belonging to himself as well as to the owner of the other premises. Yet another decision in Nageswara Rao v. Ramachandran Rao has held that a co-owner of a joint wall could not acquire an easement in respect of light and air through windows in the joint wall whatever may be the period of his enjoyment prior to the date of suit, as the normal method of enjoyment of the joint wall includes the enjoyment by opening windows or ventilators which could not give rise to any trespass so as to give a cause of action for a suit to prevent it at the instance of the other owner. To similar effect is the decision in K. Mohideen v. M.M Abdullah ( where it has been held that a person cannot acquire an easement of light and air with refeerence to property jointly owned by him with others. In view of the principles laid down in the aforesaid decisions, the appellant's claim for an easementary right to light and air cannot be countenanced.
9. Learned Counsel for the respondents relying upon the decision in Moidin Kunhi Beavy v. K Gopala Krishna Mallayya submitted that even as co-owner of the wall and a window therein, the appellant cannot object to the respondents, as owners of the neighbouring property building up to the limit or edge of their property with a view to effectively enjoy their property. Under Illustration (d) to Section 7 of the Indian Easements Act, every owner of land and building, has a natural right to light and air vertically coming to his property and with reference to air and right laterally coming, the adjoining tenement is made a servant tenement and that would ripen into acquisition of an easementary right, if the conditions therefor are fulfilled. It has earlier been noticed as to how on the common ownership of the disputed wall and the window, there is no question of acquisition of an easementary right in this case. Even so, it would be necessary to notice the distinction in cases of interference with light and air with reference to natural right and the easementary right. In cases of easementary right, the adjoining occupier may be trespassed or a owner and in either event, if he had been allowed to obstruct light and air for a period of twenty years, the right to secure relief becomes extinct. On the other hand, in the case of natural right to light and air, on the basis of the principles in Aldred's case (1738)9 Rep. 157(b) (page 70 of Peacock on Easement), even if within a period of 20 years, an owner finds himself cut off from light and air by an adjoining occupier, who is an owner, the former is not entitled to any relief. But if the adjoining owner is a wrong-doer and he shuts out light and air, causing nuisance interfering materially with the comfort of the other owner, it is open to the owner of the property suffereing from that nuisance to seek a relief similar to the relief, which may be granted in the case of an easementary right, viz., injunction or damages for actual injury sustained. This distinction has been clearly brought out by the following passage in the decision in Moidin Kunhi Beavy v. Mallayya .
In the case of owners no complaint can be 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 be 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 tespasserhas acquired an easementary right, the adjoining owner will have no remedy. But if the trespasser has not acquired such an easementary right action will lie against him...
Thus, even considering the right of the appellant to have light and air through the window in the common wall, as one hot based on easementary right, the appellant cannot complaint of the enjoyment of the neighbouring property by the respondents, as owners thereof by building it upto the limit of their property, and if, in that process, the appellant is in any manner inconvenienced, he cannot have any cause for complaint. Thus, looked at from any point of view, the appellant cannot claim that he has acquired an easementary right to light and air or that he has acquired such a right in some other mode.
10. Learned Counsel for the appellant next contended that the respondents have scooped out portions of the common wall and had thereby caused damage to the wall and the respondents should therefore be injuncted from causing further damage and should also be directed to pay damages to the appellant as claimed. No doubt the report of the commissioner shows that some portion of the disputed wall has been scooped out. But there is nothing to show that damage as such has been caused to the wall. Apart from it, it is seen that the respondents have put up their wall after scooping the disputed wall for the purpose of dovetailing their wall with the disputed wall, it cannot therefore be said that there has been a weakening of the common damags as such has been caused to the wall by the construction put up by the respondents next to the common wall. Under those circumstances, the appellant is not entitled to the reliefs of permanent injunction and for recovery of damages. At best the appellant is entitled only to a declaration that the disputed wall and the window therein is common to him and the respondents herein and no more. Consequently, the second appeal is allowed in part to the limited extent indicated above and the appellant will be entitled to a decree declaring that the disputed wall and the window therein are common to the appellant and the respondents. Each party is directed to bear his or their costs throughout.