Good legal article on valuation of easement by A.M. Ibrahim. FICA,

https://drive.google.com/file/d/0B5vWGtQ14k1BRnFDVnRtMzFkVGF4UmRHa2t4eDVvZEQweEI0/view?usp=sharing

Print Page

Whether one Co-owner of joint wall can acquire easement in respect of light and air?

 On consideration of the statutory provisions mentioned supra, viz., Sections 4, 12 and 15 we do not think that the plaintiff, who is the co-owner of a joint wall, in this case, could have acquired an easement in respect of light and air, through the windows in the joint wall in question, whatever may be the period of his enjoyment prior to the date of the suit. As we have held that the normal method of enjoyment of joint wall also 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 an obstruction or a suit in a Civil Court to prevent it at the instance of the other owner, we do not think that there is any acquisition of easement by the plaintiff in this case.
 We have also mentioned that the agreement relied upon by the defendant, in this case, having been found to be true, valid and binding on the plaintiff, he cannot prevent the defendant by an injunction from constructing any superstructure basing it on the joint wall in question. The fact that it incidentally affects his light and air does not give him any cause of action in this case to obtain an injunction against the defendant.

Andhra High Court

M. Nageswara Rao vs S. Ramachandra Rao on 13 July, 1972

Equivalent citations: AIR 1973 AP 86

Print Page

Basic principles for grant of injunction in case of easement of light and air

Even in a case where a person has acquired a right of easement to light and air, an action for damages or injunction is not maintainable unless the injury complained of is material.

The position would be no better in the case of the plaintiffs who have acquired no right of easement but complained of injury on account of the violation of the municipal plan and the rules. Plaintiffs are, therefore, to establish not merely injury to their right to light, air and privacy but material injury.

21. We would sum up our conclusions on the analysis already made

(i) Defendant has constructed his house in contravention of the municipal plan and the rules.

(ii) Mere violation of the municipal plan or rules would not furnish the plaintiff with a cause of action.

(iii) Plaintiffs must prove that defendant's construction in violation of the plan and the rules resulted in an invasion of their right to light, air and privacy causing material injury to them.

(iv) If the plaintiffs establish such a case, defendant has an obligation in favour of the plaintiffs and plaintiffs can enforce their right through Civil Court and not under the provisions of the Act.

(V) Plaintiffs to get a perpetual and mandatory injunction must also prove that pecuniary compensation would not afford adequate relief.

Orissa High Court

Krushna Kishore Bal vs Sankarsan Samal And Ors. on 28 November, 1973

Equivalent citations: AIR 1974 Ori 89

Bench: G Misra, B Patra, S Acharya

Print Page