JUDGMENT Chitty, J. - This is a suit for an injunction and, in the alternative, damages for the infringement of the Plaintiff's right to light and air to the south side of his premises. The Plaintiff purchased these premises at an auction sale when the premises were sold by the Sheriff of Calcutta on the 14th of December 1906. The sale was confirmed by an order of this Court, dated the 29th January 1907, and a sale-certificate was issued on the 1st March 1907. It appears that the premises had belonged to one Srimati Chandramoney Dassee and they were attached in execution of a decree against her on the 12th September 1905. During the attachment, and prior to the Bale, the Plaintiff alleges that Chandramoney Dassee closed up four windows on the south side of her premises with bricks and mortar, thus closing the apertures which the Plaintiff alleges were ancient-lights. Whether Chandramoney Dassee did this for a consideration, i.e., whether she relinquished the easement in favour of the Defendant for money value or whether she closed the apertures of her own free will to suit her own purposes, is a question of fact which may have to be tried. The Defendant, however, has raised the question, by way of demurrer, that the Plaintiff has no cause of action inasmuch as he purchased the property with the windows closed and cannot, therefore, insist upon any rights which the judgment-debtor Chandramoney Dassee may have previously possessed. The question has been argued whether the act of Chandramoney Dassee, in closing the openings, was an alienation within the meaning of sec 276 of the CPC and so void against the purchaser, who has a claim enforceable under the attachment. I have some doubt as to whether it can be said to be an alienation, but if it is not, I do not see how I can prevent the Plaintiff from asserting a claim to any right of light and air which Chandramoney Dassee originally possessed. If it was not an alienation, the mere blocking up of apertures would not necessarily amount to an abandonment of her rights. That is a question of fact which I must try. 2. I think, therefore, that so far as the demurrer is concerned, the case must proceed. If it was not an alienation, the mere blocking up of apertures would not necessarily amount to an abandonment of her rights. That is a question of fact which I must try. 2. I think, therefore, that so far as the demurrer is concerned, the case must proceed. I will first try the question of the Plaintiff's right to the access of light and air to this house on its southern side. 3. The question of damages can stand over till that point is decided. 4. Mr. C.R. Dass.--The question of re lief, generally. 5. The Court.--The question of damages or injunction. 6. The case thereupon proceeded to a hearing of the evidence adduced on behalf of the Plaintiff and the Defendant. 7. Mr. B.L. Mitter was heard again on behalf of the Defendant : He submitted that the transaction did not amount to an alienation but was merely a license and therefore did not fall within the operation of sec 276 of the Code of Civil Procedure. In support of his contention that there could be a license given, he cited, Winter v. Brockwell East Rep. 308 (1807), Davies v. Marshall 10 C.B. (N.S.) 697 (1861), per Erle, C.J., at p. 709, Liggins v. Inge 7 Bing. 682 (1831). 8. The Plaintiff was not called upon to reply. Chitty, J. 9. The remarks which I made yesterday in disposing of the demurrer must be taken as part of my present judgment. The facts of the case have now been gone into. On those facts, it is proved beyond any doubt that the four apertures in question are ancient-lights. The Plaintiff has put forward the story that these apertures were closed by arrangement between the sons of Chandramoney Dassee and the Defendant, who paid Rs. 10 to each of them for that privilege and then himself by his masons closed the windows with bricks and mortar and subsequently built the wall against the south wall of the attached premises of which the Plaintiff now complains. 10. The Defendant's story on the other hand is that he had nothing whatever to do with the sons of Chandramoney Dassee; that they blocked up the windows of their own free will; and that he subsequently built his wall against Chandramoney Dassee's house. 10. The Defendant's story on the other hand is that he had nothing whatever to do with the sons of Chandramoney Dassee; that they blocked up the windows of their own free will; and that he subsequently built his wall against Chandramoney Dassee's house. It is admitted by his counsel that this wall was built solely by way of precaution to prevent the acquisition of any easement in the future. On these facts, and having regard to the details of the story told, it appears to me that the Defendant is on the horns of a dilemma. If we take his own case, it is clear from the evidence of Kedar Nath and Ashutosh that these openings were blocked, not in order to exclude the light and air, but because the window frames and bars had become so dilapidated as to be dangerous. There was a fear, it was said, of children falling out or of thieves effecting an entrance. When asked whether there was any intention of re-opening the apertures, Kedar Nath discreetly replied, not at that time. The non-user of easement is not an implied release of it and I could not, therefore, upon that evidence come to the conclusion that there was any intention on the part of Chandramoney Dassee and her sons to abandon the right which they undoubtedly possessed. If that be the case, the transfer of the dominant tenement to the Plaintiff would carry with it the easement which was then existing, but which by the closing up of the apertures might be in suspense. 11. The other point of view is that of a definite arrangement between the Defendant and Chandramoney'a sons, principally Kedar Nath and I feel bound to say that, in my opinion, this is probably the truth of the case. The reason given by Kedar Nath for blocking the windows is so puerile that it can hardly be accepted. These are south windows and must be of extreme importance to the rooms which they light, and to block them up with bricks and mortar, because the frames and bars are out of repair, seems to me absurd. If there was this arrangement between the Defendant and Kedar Nath, it is difficult to see how the Defendant can rely upon it when he expressly denies it. If there was this arrangement between the Defendant and Kedar Nath, it is difficult to see how the Defendant can rely upon it when he expressly denies it. But taking it to be the case, does it put him in any better position 1 A good deal has been said about the transfer of an easement and that it cannot be regarded as an alienation within the meaning of sec. 276 of the Code of Civil Procedure. I expressed yesterday some doubt on that point, but, on further consideration, I am inclined to think that it must be so regarded. The easement of light and air falls within the definition of immoveable property and it is a very important appanage of the property in this case which was under attachment. An easement can be extinguished by the dominant owner releasing it expressly or impliedly to the servient owner and if it was so expressly released, it would, in my opinion, be an alienation of a portion of the property attached. It would certainly have the effect of materially diminishing the value if the easement was, as in this case, an important one. Mr. Mitter attempted to argue that the construction of the Defendant's wall by leave of Chandramoney or her sons would amount to a license which would have the effect of extinguishing the easement. I do not think that this is a correct way to look at it. In my opinion, it was either an express relinquishment or nothing at all. As to whether the release was carried out in proper form or not, whether there should have been a deed, is (sic) a matter of any importance. If it was not properly carried out, it might be for that reason, invalid. If it had been properly and formally effected, it would, I think, be void under the provisions of sec. 276. As to the relief to be granted to the Plaintiff, there can be no doubt whatever. I have no particular sympathy for the Plaintiff who, no doubt, must be taken to have purchased this property with his eyes open, and possibly, by reason of this alteration in the south wall, to have procured it at a lesser price than he might otherwise have done. That, however, cannot interfere with his demand for his rights, if he has any. That, however, cannot interfere with his demand for his rights, if he has any. In my opinion, he has the right to have this wall, which is admittedly a temporary structure put up for a temporary purpose--the acquisition of rights in the future--removed so far as it covers closed apertures. It was suggested that it was not a case for a mandatory injunction but I cannot imagine any case in which a mandatory injunction would be more appropriate. To award damages would be simply to compel the Plaintiff to sell his right to the Defendant at a price to be named by the Court. I therefore pass a decree in favour of the Plaintiff for a mandatory injunction in the usual form for removal of so much of the Defendant's wall as has been built in front of the four apertures in the first floor of the south wall of the Plaintiff's premises. The Plaintiff must have his costs of this suit on scale No. 2. 12. Mr. A.N. Chaudhuri.--The Defendant must demolish this wall within a specified time. The Court.--Within a week. 13. Mr. B.L. Mitter.--Will your Lordship give us a little more time, say to the end of next month? The Court.--No. I will give you a week.