Tuesday 6 March 2012

Right To discharge night soil burden of proof is on defendant to prove that he has right to discharge ngith soil

Calcutta High Court
Jotindra Mohan Mitter vs Probodh Kumar Dutt on 8 May, 1931
Equivalent citations: AIR 1932 Cal 249
Author: Rankin
Rankin, C.J.
1. The plaintiff and the defendant are owners of adjoining premises which originally belonged to certain people called Dutt, but which were partitioned in 1892; the plaintiff's premises being lot B in the return of the Commissioner of partition and the defendants premises being lot Rule The defendant's premises are known as No. 24 Kasi Dutt Street. The defendant purchased them at a Registrar's sale on 7th July 1928. Soon afterwards at all events by October, he commenced to make certain improvements in connexion with these premises. These improvements have brought him into collision with the plaintiff who makes throe complaints.
2. The first complaint is that the defendant was making wrongful alterations to the common passage leading northwards to Ramjan Ostagar Lane. On this point the learned Judge found for the plaintiff and before us the question of common passage has been settled by agreement. Our decree in this appeal will direct by consent that the learned Judge's order as to the common passage be vacated and that in lieu thereof the terms of settlement be carried into effect.

3. In the second place the plaintiff complains that the defendant has obstructed the access of light and air to the window marked A in the north wall of the plaintiff's kitchen. This room was, in the partition return, called the 'metaighur' or room for making sweets. The window in question is on the ground floor and faces the defendant's Baitakhana. Above the space between the two are the first floor rooms of the defendant. To the east of the ground floor space there was originally, as the learned Judge has found, an open archway in which at some time or other the defendant or his predecessors had put a gate in which, according to the plaintiff, there were open slits through which the light could penetrate. The archway itself, above the gate, was according to the plaintiff, open. The plaintiff complains that the defendant has blocked up the archway and put in a door entirely obstructing the light which formerly reached window A and that in January 1929 the defendant further obstructed the window by putting an iron sheet right against it.
4. It has been found by the learned Judge, upon evidence which is convincing, that the plaintiff has enjoyed the light and air to window A for more than 20 years, and that the plaintiff's right, so acquired, has been interfered with by the defendant blocking the window itself and blocking the archway to which I have referred. The learned Judge has also found that the extent to which the light has been obstructed amounts to a nuisance and has granted an injunction restraining the defendant from interfering with the plaintiff's right to light and has ordered him to remove the corrugated iron sheets placed by him against the window and to remove the obstruction which he has put up on the arch unless he makes some other arrangement to restore the right of the plaintiff to light and air.
5. Upon the question of the plaintiff's right, the defendant upon this appeal has referred us to the terms of the partition return of 1892, and in particular to Clause 22 thereof and the plan annexed thereto. He draws attention to the fact that that portion of the north wall of the plaintiff's kitchen in which window A is placed, was allotted to the defendant's predecessor, so that the actual window and wall do not belong to the plaintiff, though the room belongs to the plaintiff. The Commissioner, by Clause 22 of his return, directed the owners of each allotment to make their allotments self supporting and independent of all support from the other allotments; and declared that each owner would be entitled to erect walls to any height along, but within, the boundary lines of his allotment. He further directed that all openings in any allotment immediately adjoining any other allotment, and overlooking the same, should be permanently closed within four months or such further time as might be allowed. It is clear therefore that immediately after 1892, the owner of the defendant's premises was not only competent but compellable to close up window A altogether; and the owner of plaintiff's premises had no right of support from the defendant's wall for his beams and girders, but could have been compelled to provide them with independent walls on his own lands. Up to the time of the partition, unity of ownership had prevented the acquisition of any easement; and the effect of the partition was that no easement was granted to any party. On the contrary, each party could, within a limited time, have been compelled in one way or another to make his premises independent.
6. Technically the question before us has to be determined according to the terms of Section 26, Lira. Act of 1908, and two objections have been taken to the finding of the learned Judge that the plaintiff by his enjoyment for 20 years has acquired a right to access and use of light and air through window A. Firstly it is said that the partition decree gave the plaintiff no right to light over the defendant's premises and that the subsequent enjoyment; of the right by the plaintiff or his predecessors was not an enjoyment as of right.' In my judgment this objection is not sustainable. It is quite true that in 1892 when the plaintiff's premises wore severed they had no more right to an easement of light and air through window A than they would have had if they had been newly constructed. Under the Partition Return each set of premises makes, as it wore, a new start; but if the owner of the defendant's premises, notwithstanding his right to block up window A in any way he liked, or to obstruct the access of light thereto by erecting anything he liked on his own premises, allowed the access of light and air to the plaintiff's kitchen to continue for 20 years, then unless it can be shown that the enjoyment of the plaintiff was permissible, the enjoyment would be as of right under Section 26, Dim. Act. "As of right" means for this purpose "nec, vi nec clam, nec precario," We have referred to English cases on the subject: Bright v. Walker 1 M.& Rule 211 Tickle v. Brown 4 Ad.& E. 369 Gardner v. Hodson [1903] l A.C. 229. In my judgment the 20 years enjoyment after the partition, although the plaintiff was not really entitled of right thereto, was enjoyment as of right.
7. The second objection of the appellant is this. He says that the wall was allotted to the defendant's predecessor, so that the defendant is the owner of the window. It is contended that the right to light can only be prescribed for if the window itself belongs to the plaintiff; so that even although the plaintiff's building {in this case the plaintiff's kitchen) has enjoyed the access and use of the light nevertheless, because the wall and the aperture through which the light has come to the plaintiff's building are not in the ownership of the plaintiff, no right can be acquired under Section 26.
8. It is in India quite a common thing for a room to have three walls only and to be entirely open on one side. In such a case if light and air is enjoyed, as of right for 20 years from adjoining premises, an easement would arise. If the adjoining owner, before the expiry of 20 years, built a wall a foot away from the opening, he would he entirely within his rights; and if the wall so built obstructed some of the light going into the room but by reason of an aperture in the wall admitted a certain quantity of light, the 20 years enjoyment would give rise to an easement. I cannot see that it makes any difference if the wall begins (sic) flush against the edges of the side walls of the plaintiff. In England at all events it is very unusual for the outer wall of a room to belong to a different owner than the owner of the room; and it is intelligible enough that the phrase ''the plaintiff's ancient lights" should naturally be equated with the phrase "plaintiff's ancient windows." We have been asked to refer to some of the many cases in which this has been done, for example, Lord Davey's judgment in Colls v. Home & Colonial Stores Ltd. [1904] A.C. 179 and to the common form of injunction to be found in Seton on Decrees and in other places. In my judgment however the argument is untenable. The subject-matter of Section 20, Lim. Act, like the subject-matter of the English Prescription Act, is the access of light over the defendant's premises into the plaintiff's building. Once the light gets into the plaintiff's building no statute is required to justify his enjoyment of it. In this case the access of light with which we are concerned is the access of light from the east through the archway and through the aperture in the defendant's wall into the plaintiff's kitchen.
9. I have not found any English case which concerns a wall belonging to the defendant being one of the walls of the plaintiff's room, but in National Provincial Plate Glass Insurance Co. v. Prudential Assurance Co. [1877] 6 Ch.D. 757 and in Scott v. Pape [1886] 31 Ch.D. 554 there are some important observations which point us to the right principle. Those oases were concerned with the effect upon the plaintiff's right of a rebuilding of the plaintiff's premises involving a change in the plaintiff's windows. Fry, J. in the former case, after dealing with the question whether in what sense the plaintiff's building must be identical, proceeded to consider the argument that the access of light must be through identical apertures. Speaking in the English Prescription Act he observed:
Furthermore, I find nothing whatever in the statute which refers expressly to a window or aperture. I find in the statute a reference to the access of light and in my view the access of light might be described as being the freedom with which light may pass through a certain space over the servient tenement; and it appears to me that wherever for the statutory period a given space over the servient tenement has been used by the dominant tenement, for the purpose of light passing through that space, a right arises to have that space left free so long as the light passing through it is used for or by the dominant tenement. I came to that conclusion for this reason that you do not want a statute to give you a right of access in your own premises to light through your own apertures. The statute is wanted to assure your right in the space over the servient tenement. But then it is said that the cases have to a largo extent proceeded upon the form and size of the aperture or window; and that is perfectly true, because of course, the opening in the dominant tenement is the limit which defines the boundaries of the space over the servient tenement. It is for that reason that in all the eases the Court has had regard to the aperture in the dominant tenement by means of which the space over the servient tenement has been useful to the dominant tenement....This case seems to me to illustrate the propriety of not introducing into the construction of the statute any question with regard to aperture, opening or window except so far as the statute itself introduces them.
10. In Scott v. Pape [1886] 31 Ch.D. 554 it was pointed out by Calton, L.J., that:
The access and use of light depends upon the number of pencils of light which come directly or by refraction into the window.
11. Bowen, L.J., points out that the statute says nothing about an aperture
though it is perfectly true that we cannot read the statute intelligently without seeing that it assumes that there must be some measure of the enjoyment in order accurately to fix the light which is to be acquired after an enjoyment of 20 years, and that measure can only be the windows or apertures of the house; or to speak still more strictly and accurately, the measure of the enjoyment and the measure of the right acquired are not the windows and apertures themselves, which would involve a continuing structural identity of the windows, but the size and position of the windows which necessarily limit and define the amount of light that arrives ultimately for the house's use.
12. Fry, L.J., repeated the observations he had made in the case last cited:
the word " access " as used in that section, does not refer to the access through the orifice-- through the aperture or window but to the freedom of passage over the servient tenement * * * the right acquired by the dominant tenement is governed and measured by the access to the dominant tenement, and therefore the aperture which lets the light into the dominant tenement defines in a manner familiar to us all the area which must be kept free over the servient tenement.
13. In my judgment the ownership of the aperture or the ownership of the structure surrounding the aperture is not an essential matter. The question is, has the plaintiff's building enjoyed the access of light and air from the defendant's premises through a defined channel. Light and air might have come from the defendant's premises without obstruction of any kind or it may have come only through an opening or aperture in the defendant's premises but if for 20 years it has come to the plaintiff's building in a denned channel by the same access and has been used and enjoyed therewith as of right, Section 26 of the Act of 1908 can and must be applied to it.
14. The appellant contends however that upon the evidence the light of the plaintiff's kitchen has not been diminished by so much as to make it right that an injunction should be granted. We have been asked to say that sufficient relief can be given to the plaintiff in the form of damages. So far as concerns the alterations which the defendant has made at the archway and Lord Macnaghten's observations in Coil's case have been referred to. The learned Advocate-General on the other hand has, on behalf of the plaintiff insisted on the highhanded action of the defendant with regard to all the three matters in suit.
15. To my mind the leading consideration in the present case is the circumstances that to require the defendant to restore the former condition of the archway with such alterations as he may care to make so long as the plaintiff's right to light is not interfered with, is to impose upon him a very small expenditure. Compensation for the rendering of the plaintiff's kitchen less convenient would, in my judgment, considerably exceed the cost of making the necessary alterations. The defendant is not entitled to purchase compulsorily the right to make any portion of the plaintiff's kitchen dark. On the other hand, there is no question of holding the defendant up to ransom be-cause he has made an innocent mistake. I think that the discretion of the learned Judge should not be interfered with on this point.
16. The third question in this case is whether the defendant has the right to use a drain which runs underneath the plaintiff's premises in connexion with certain new privies which he has erected upon his property. At some time between 1895 and 1905, the plaintiff's predecessors constructed a drain on their own land. This drain connects with the sewer in Kasi Dutt Street. In 1908 we know from the Corporation's sanctioned plan, that the defendant's predecessor made a drain on his own premises and connected it to the plaintiff's drain. So far as the plaintiff's property is concerned, no privies have ever been connected with this drain. The defendant, after acquiring his property in 1928, was proceeding, for the first time, to connect privies with this drain and the plaintiff having objected the Corporation ultimately postponed giving sanction in the matter until the present case had been determined. The plaintiff's case is that the defendant's predecessors obtained permission from the plaintiff's predecessor, Bireswar Dutt to discharge waste water and rain water into the plaintiff's drain. In the plaint ho says that the defendant has connected up his privies without obtaining sanction from the Corporation and that he has been using the privies without any proper flushing arrangements. He says that this use of the plaintiff's drain will cause nuisance to the plaintiff and his tenants.
17. Now the question of sanction from the Corporation may be put on one side. It is clear enough that if the defendant succeeds upon this point, the Corporation will make no objection. Again, the question of nuisance may be put on one side because there is no evidence that the defendant has caused any nuisance to the plaintiff. The evidence is that the pipe is a six inch pipe and there is no proof that the drain is not suitable for the use to which the defendant proposes to put it. One regards with some trepidation the absence of flushing arrangements in the defendant's privies. The defendant says that he had not yet had time to instal these. But in any case there is not on the evidence, any case against the defendant on the ground of nuisance.
18. In these circumstances, Mr. H. D. Bose, for the defendant, very properly and accurately says that the plaintiff's case is one not of nuisance but of trespass. The plaintiff does not object to the defendant's discharging into this drain waste-water and rain water; he objects solely to the defendant discharging night soil front the privy on the ground that this increases the burden on the plaintiff's drain without his permission.
19. The written statement of the defendant denies that there was any argument between his own and the plaintiff's predecessors and he pleads that the sanction for draining and carrying night soil and refuse from privies from the group of houses mentioned in the plaint, by combined operation, has been accorded by the Corporation to the owners of the houses.
20. Now sanction of the Corporation has prima facie no effect to give rights against the owner of another property and this argument has not been urged before us. The learned Judge has found that the defendant has failed in his attempt to establish community of drainage in the neighbourhood. It is difficult to see that the written statement contains any relevant defence in law. If the defendant seeks to discharge night soil through the plaintiff's drain, it would seem to be necessary that he should claim this right either upon the basis of some contract or irrevocable license, or upon the basis of prescription, and these defences do not seem to be taken.
21. As the defendant's drain was connected with the plaintiff's drain in 1906, after obtaining sanction from the Corporation in the ordinary manner and quite . openly, it is clear that the plaintiff's predecessor consented to the connexion being made; and it is clear also that at that time no question save of waste water and rain water arose. The plaintiff, who was examined on commission, gave evidence of a verbal stipulation made at the time by Bireswar Dutt that the drain should only be used for rain water and waste water; but doubt is thrown upon the plaintiff's evidence by the fact that on three different occasions he has verified this part of his case as being true " to his information and belief." It is quite clear however that the defendant's drain was connected with the plaintiff's drain with the knowledge of the plaintiff's predecessor and it seems to me that it is for the defendant to show some foundation for the right which he claims to discharge night soil through the plaintiff's drain without his permission. The defendant can give us evidence of any contract and he has certainly not proved that the user of the drain since 1906 has been as of right. In these circumstances I do not see that any real foundation is made for the right claimed by the defendant.
22. It is contended before us that as the drain is capable of taking night soil, and as it was lawfully connected in 1906 with the defendant's premises, the inference must be that the defendant has a right to use it in any reasonable way he likes. In the absence of evidence however it appears to me to be an arbitrary assumption that the defendant was ever given a right to use the plaintiff's drain in any reasonable way he might choose. If the defendant was ever given anything more than a license, the right to the use of the drain was not unrestricted but was a right limited by a particular purpose and also by the condition of the defendant's premises at the time.
23. In Wood v. Saunders [1875] 10 Ch. 582 there was a grant of right for the discharging of night soil to a certain cesspool from a certain house through certain drains. The house had been much enlarged and converted into an asylum in which nearly 150 persons wore resident. Vice-Chancellor Hall's judgment; was approved in the Court of appeal:
It had been said that the right must be construed with regard to the size of the pipe or ditch, but there was no authority for that proposition. In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Wills, J., in Williams v. James [1867] 2 C.P. 577 as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is in the case of this mansion, in the state in which it was when the grant was made The matter must however be looked at reasonably, and no small addition to the house would be improper. Hero there had been a very large increase.
24. In my judgment the defendant has made out no case to show his right of passage of night soil from the privies which he has erected and the plaintiff is entitled to say that if the defendant has any right at all, it is a right for the passage of rain water and waste water only. On this point I agree with the learned Judge. The appeal therefore fails. As I have already said, as regards the common pass-ago our decree will direct that the direction given by the learned Judge will be vacated and the terms of settlement arrived at before us will be carried out. Quoad ultra, the appeal will stand dismissed. The respondent will get three-fourths of the costs of the appeal as against the appellant.
Pearson, J.
25. I agree.
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