B. K. MEHTA, J. ( 1 ) THIS first appeal at the instance of original plaintiff No. 1 arises out of a suit filed in the City Civil Court Ahmedabad being Civil Suit No. 1009 of 1969 praying for the reliefs of permanent injunction restraining the defendants from putting up the construction across the common chowk belonging to the parties so as to obstruct their light and air which they are entitled to for the comfortable living and enjoyment of their houses and for a mandatory injunction enjoining the defendants to remove the water pipe line which they have laid in chowk so as to cause damage to the property of the plaintiffs. They have also claimed damages in sum of Rs. 9900. 00 as their properties have been damaged considerably as a result of the removal of the lateral support by the defendants who have rebuilt their houses from the foundations. ( 2 ) THE learned City Civil Judge has dismissed the suit of plaintiffs as in his opinion the plaintiffs have not been able to prove that they have acquired by prescription a right of easement in respect of the light and air through the open chowk with respect to their properties. The learned City Civil Judge found against the plaintiffs that their right of way over the open chowk was in any way prejudicially affected by the proposed constructions by the defendants. He was also not impressed by the claim of the plaintiffs that they had suffered damages on account of the removal of the lateral support of the defendants while reconstructing their houses from the foundations. He therefore by his judgment and order of December 20 1973 dismissed the suit. ( 3 ) IN order to appreciate the grievance of the original plaintiff No. 1 who is the appellant before me I may briefly refer to the situation of the respective properties of the parties hereto. In the city of Ahmedabad on Astodia road in Jamalpur Ward No. 2 there is a Khadaki in the Street known as Vinchhini-Pole in which the houses of the respective parties are situated. The said Khadaki opens in the south on Astodia Road. The houses of original plaintiffs Nos. 1 and 2 are situated on the north blind end of the said Khadaki in the opposite direction of west and east respectively. The said Khadaki opens in the south on Astodia Road. The houses of original plaintiffs Nos. 1 and 2 are situated on the north blind end of the said Khadaki in the opposite direction of west and east respectively. On the south of the said two houses two houses of the original defendant are situated opposite to each other in the east and west. If further appears that there are projecting OTAS in front of the two houses of the aforesaid plaintiffs Nos. 1 and 2 as well in front of the house situated on the western side of the defendant. There is an open chowk running from north to south in between these four houses. At the southern end of the chowk there is a Khadaki over which there is a connecting passage joining the two houses of the defendants in which they have provided bath-room and lavatory. The width of the chowk is varying at different points and it varies from 49 to 66. It appears that the defendants started re-building their houses from the foundations in course of which the foundations of the plaintiffs houses were exposed since the lateral support provided by the defendants houses was removed. The houses of the plaintiffs therefore tilted in the southern direction. The defendants wanted to connect their two houses by constructing a passage on the first floor in the chowk. The plaintiffs therefore apprehended that their comfortable living and enjoyment in their houses would be materially effected by the proposed construction which would obstruct the light and air accustomed to enter their houses. The plaintiffs therefore filed the present suit claiming the reliefs stated above. ( 4 ) IT should be noted at the outset that original plaintiff No. 2 has sold his house to plaintiff No. 3 during the pendency of the suit. It appears that there was a compromise between plaintiffs Nos. 2 and 3 on one hand and the defendant on the other so far as the question of damages consequent to the removal of the lateral support was concerned. The said plaintiffs have not filed any appeal against the judgment and decree of the learned City Civil Judge dismissing their suit for the relief of injunction to prevent obstruction to the light and air which they are entitled to receive for comfortable living and enjoyment of their houses. The said plaintiffs have not filed any appeal against the judgment and decree of the learned City Civil Judge dismissing their suit for the relief of injunction to prevent obstruction to the light and air which they are entitled to receive for comfortable living and enjoyment of their houses. ( 5 ) TWO principal points arise in this appeal for determination; firstly whether the plaintiffs have been successful in establishing that by the proposed construction in the chowk the light and air would be substantially demolished so as to impair the enjoyment of and comfortable living in their houses situated on the north-western end of the chowk and secondly whether the plaintiff-appellant is entitled to any compensation for the damages to his house as a result of the removal of the lateral support in course of re-construction of the houses of the defendant situated on the south-western corner of the chowk and adjoining to the house of plaintiff No. 1 the appellant. The learned Advocate appearing on behalf of the appellant-plaintiff has invited my attention to the relevant evidence adduced by the plaintiffs in this connection. Plaintiff Kantiala Maganlal has stated in his deposition recorded at Ex. 158 that the chowk in question has been kept open for last about 50 years and more. He has got one room which is used as a kitchen and a stair-case on the ground floor. The room which is used as a kitchen is measuring about 15x 10. There are two ventilators one in the north opening in the pole and another in the back western wall opening in the Navel or Galiyari. These apertures are respectively measuring 2 x 3 and 1 x 1 1/2. The Navel or Galiyari is measuring about 2 1/2 x 3 in width and is opening to the sky. The main door of the house is opening in the chowk. There is no other aperture in the wall opening in the chowk. On the first floor there are two rooms which are connected by a door in between. Each of these rooms has got a window on the northern side. The front room has a window opening in the chowk and the rear room has got a window in the western direction opening in the Galiyari. These rooms are used as living rooms for the members of the family. Each of these rooms has got a window on the northern side. The front room has a window opening in the chowk and the rear room has got a window in the western direction opening in the Galiyari. These rooms are used as living rooms for the members of the family. There is one room on the third floor for which no grievance is made about the light and air. Except this bare description of the houses and the apertures the appellant-plaintiff has not said a word as to what extent the light and air would be obstructed by the proposed construction and what would be the effect of the alleged diminution of the light and air. The other witness who has deposed in this connection is Mr. N. R. Shah who is an Architect and a Member of the Institute of Architects and practising as such since 1942. He has visited the site and submitted his report. He has deposed that by the proposed construction of the defendants the light and air to the house of the appellant-plaintiff No. 1 would be effected on all the three floors inasmuch as the rule of 45 degree would be violated because the height of the proposed building would be more than the width of the chowk. It is no doubt true that the evidence of Shri N. R. Shah has not been seriously controverted in so far as he pointed that the light and air would be affected because the rule of 45 degree has been violated by the proposed construction. The learned Advocates appearing for the defendants-respondents urged that there would be no question of violation of rule of 45 degree angle by the proposed constricttion since the servient tenement and the dominant tenement in the present case are situated adjoining each other and the rule would be attracted only when the construction is proposed by raising height of the servient tenement situated just opposite the dominant tenement. I am afraid this is too broad a submission to be acceded to. It is common ground that by the proposed construction the defendants wanted to connect both their houses situated opposite to each other in the southern direction of the chowk. I am afraid this is too broad a submission to be acceded to. It is common ground that by the proposed construction the defendants wanted to connect both their houses situated opposite to each other in the southern direction of the chowk. What would be the amount of evidence that would be needed to prove the material injury to light by lateral or oblique obstruction than is necessary in case of a direct obstruction is a question of fact in each case. The law requires that the new construction complained of must be so near to the dominant tenement as to constitute a nuisance which again is a question of fact depending upon the circumstances of each case such as light coming from other sources and the proximity of the premises complained of. In a given case the dominant tenement may be left with much less than 45 degree of light and yet there cannot be any actionable grievance on account of diminution. Broadly speaking it is a workable rule to consider that no substantial injury is done where the angle of 45 degree is left open for the light to enter into the dominant tenement. It may furnish a prima facie evidence that there is no likelihood of any material injury and this workable rule would apply more strongly where only a lateral light is partially affected and all the lights are not completely obstructed (vide CHHOTULAL V. LALLUBHAI I. L R. 29 BOM. 157 AND BALA V. MAHAVIR I. L. R. 20 BOM. 788 ). The rule of 45 degree is a rule of evidence and not a positive rule of law. The principal consideration in all such cases is to determine whether such obstruction is actionable or not or whether it amounts to nuisance in the sense that it would affect the comfortable enjoyment and living of the dominant tenement. The evidence which has been adduced by the plaintiff in my opinion is not at all sufficient to conclude that the apprehended diminution of the light by the proposed construction would so seriously and substantially affect the comfortable living and enjoyment in the dominant tenement that a successful action in nuisance can lie in Court of law. Merely because the rule of 45 degree is violated it cannot be inferred necessarily that the comfortable enjoyment and living of the dominant tenement would be seriously affected. Merely because the rule of 45 degree is violated it cannot be inferred necessarily that the comfortable enjoyment and living of the dominant tenement would be seriously affected. One should also hear in mind that the grievance made in the suit is obstruction to the lateral light. The chowk in the front of the house of plaintiff No. 1 remains open to the sky and is not going to be obstructed upon. It is only at the end of the house of the plaintiff No. I and at the beginning of the house of the defendant that some passage is to be constructed over head for purposes of joining the the two houses of the defendant. In other words if at all there is going to be any obstruction to the light and air it would be a lateral or an oblique obstruction and in such cases the amount of evidence which is needed to prove the material injury is greater than in case of a direct obstruction. To say the least the evidence is not at all satisfactory for establishing the injury by direct material obstruction much less for proving the injury by lateral or oblique: obstruction. In the circumstances therefore the trial Court Judge was justified in reaching the conclusion that the plaintiff No. 1. the appellant herein has not been able to vindicate his grievance about the obstruction to the light and air entering his house by the defendants. Appeal dismissed. .