G. N. SABHAHIT, J. ( 1 ) THIS appeal by the defendant is directed against the judgment and decree dated 4-1 1974 passed by the II Addl. Civil judge, Belgaum in RA No. 195/71 on his file, dismissing the appeal on confirming the judgment and decree dated 1-4-1971 passed by the II Addl. Munsiff, Belgaum in OS No. 96/69 on his file decreeing the suit of the plaintiff as prayed for. ( 2 ) THE plaintiff filed a suit for permanent injunction restraining the defendant from causing obstruction to the flow and access of air and light from the open site in CTS No. 1779/a- B situated at Kelkar bagh, Belgaum into six windows in the western wall of plaintiff's house, CTS No. 1767/a situated at Kirloskar Road, Belgaum. The defendant was attempting to construct a building on the said open site in CTS No. 1779/a B, so as to cause obstruction to the flow and access of air and light to the bouse of the plaintiff. The plaintiff is the owner of the house CTS no. 1767/a at Kirloskar Road, Belgaum and she is residing in it. There are two windows in the western side wall in the ground floor and 4 windows in the western wall of the first floor of the plaintiff's house. These windows are in existence ever since the house was constructed. The defetedant purchased CTS No. 1779/a-B from one Yallubai Dalai. The plaintiff has purchased her house CTS No. 1767/a on 15-9 1932 from the Original owner. According to the plaintiff herself and her predecessors in title enjoyed the free air and light passing through the window on the western wall of the plaintiff's house from the open space of the house bearing cts No. 1779/a B peacefully, openly and as of right for more than 20 years. So according to the plaintiff, she had acquired a prescriptive right of easement to enjoy free air and light passing through the said windows of her house. The plaintiff recently came to know that the defendant obtained permission from the City Municipal Council, Belgaum to construct a four storeyed building in the open site in CTS no. So according to the plaintiff, she had acquired a prescriptive right of easement to enjoy free air and light passing through the said windows of her house. The plaintiff recently came to know that the defendant obtained permission from the City Municipal Council, Belgaum to construct a four storeyed building in the open site in CTS no. 1779/a-B. If defendant constructs her building on the said site as per the approved plan, the flow and access of light and air passing as at present through the said open space backyard of the CTS No, 1779/a-B into the windows in the western wall of the plaintiff's house would be completely obstructed and the said house of the plaintiff would become uncomfortable and would be rendered unfit and useless for occupation and for residence and the value of the house would be considerably diminished and plaintiff would be put to irreparable loss. Hence, the plaintiff instituted a suit for injunction against the defendant to restrain the defendant from putting up such building, after issuing notice to defendant on 3 1-1969, since the defendant refused to heed to the notice issued to her. Defendant according to the plaintiff was proceeding with the work of construction. Hence, there was urgency for injunction. ( 3 ) THE defendant resisted the suit by filing her written statement. She contended that the plaintiff did not acquire easemen- tary right for flow and access of the air and light through the windows situate in the western wall of her house. There were six windows in the western wall of the plaintiff's house. But, the defendant denied that these windows were in existence for more than 20 years. The defendant denied that the plaintiff acquired perscriptive right of easemeat for air and light through the windows. The defendant had obtained permission of the Municipality to construct a four storeyed building. She denied that the said construction would obstruct light and air to the house of the plaintiff so as to render the plaintiff's house unfit and useless for residence. She had a right to construct her own building in her own site. Besides, defendant proposed to leave open space of about 5' between the plaintiff's house and the proposed new building. Hence, she prayed for dismissal of the suit. She had a right to construct her own building in her own site. Besides, defendant proposed to leave open space of about 5' between the plaintiff's house and the proposed new building. Hence, she prayed for dismissal of the suit. ( 4 ) THE trial Court raised the following issues as arising from the pleadings :- (1) Does the plaintiff prove that she had acquired prescriptive right of easement of getting light and air through the windows from the open space of CTS no. 1779/a-B. (2) Does she further prove that the said supply of light and air would be diminished by defendant making construction there ? (3) Is the plaintiff entitled to the permanent injunction as sought ? (4) What decree or prder ? ( 5 ) DURING trial, the plaintiff examined herself as PW 1 and she further examined three witnesses on her behalf as PWs 2, 3 and 4. She also got marked Exts. P 1 to p 12. As against that, the defendant did not examine herself, but, examined her son as DW 1 on her behalf. She got marked exts. D 1 to D 10 (a ). ( 6 ) THE learned II Addl. Munsif, Belgaum who heard the case, appreciating the evidence on record, answered issue Nos. 1, 2 and 3 in the affirmative and in the view he decreed the suit as prayed for. Aggrieved by the said judgment and decree, the defendant in the suit went up in appeal before the learned Civil Judge, Belgaum in ra No. 195/71. ( 7 ) THE learned II Addl. Civil Judge, belgaum, who heard the appeal, raised the following points as arising for his consideration in the appeal. (1) Whether plaintiff has proved that she has acquired a prescriptive right of easement of getting light and air through the windows in the western wall of her house from the open space of CTS No. 1779/a-B of the defendant ? (2) Whether plaintiff has proved that the access of light and air through her windows in the westerm wall of her house would get diminished on the open space opposite to the windows in the western wall of plaintiff's house ? (2) Whether plaintiff has proved that the access of light and air through her windows in the westerm wall of her house would get diminished on the open space opposite to the windows in the western wall of plaintiff's house ? (3) Whether plaintiff proves that there will be a diminution in the quantum of light and air if the defendant constructs her proposed building as to make it in sufficient for the premises according to the ordinary notions of mankind, for the comfortable use and enjoyment of her house as a dwelling house ? (4) Whether plaintiff is entitled for an injunction sought for against the defendant ? (5 Whether the judgment and decree of the trial Court be interfered with ? (6) What order ? ( 8 ) THE learned Civil Judge, reassessing the evidence on record in the light of the arguments addressed before him answered points 1, 2, 3 and 4 in the affirmative. He answered point No. 5 in the negative and in that view he dismissed the appeal on confirming the judgment and decree passed by the trial Court. Aggrieved by the said judgment and decree, the defendant has come up with the above second appeal before this Court. ( 9 ) THE learned Advocate appearing for the appellant strenuously urged before me that the trial Court did not raise the material issue regarding the nuisance caused by the proposed building by the defendant. In that view he submitted that the defendant did not have sufficient opportunity to adduce evidence in that behalf and thus, he submitted that the trial was vitiated and the first Appellate Court failed to notice it and to allow the appeal and remand the case. He further submitted that the evidence on record was not sufficient to hold that the air and light were likely to be so reduced by the proposed construction as to make the house unfit and useless for residence as is held by the first Appellate Court without an issue in that behalf. Hence, he submitted that the proper issue should be raised and case should be remanded for fresh hearing before the trial Court. ( 10 ) AS against that, the learned Advocate appearing for the respondent-plaintiff argued supporting the judgment and decree of the trial Court confirmed by the first appellate Court. Hence, he submitted that the proper issue should be raised and case should be remanded for fresh hearing before the trial Court. ( 10 ) AS against that, the learned Advocate appearing for the respondent-plaintiff argued supporting the judgment and decree of the trial Court confirmed by the first appellate Court. ( 11 ) THE point, therefore, that arises for my consideration in this is ; Whether the trial is vitiated for want of necessary issue and whether the appeal is required to be allowed and the case remanded on that count. ( 12 ) HALSBURY's Laws of England 4th edn. deals with Easements and profits a prendre in Vol. 14. Para 210 of that volume deals with right to light. Para 210 deals with the topic "no natural right to light". Para 211 deals with the topic"nature of easement of light" and para 212 speaks of "interference must amount to nuisance". Speaking on the aspect, the learned Author has observed thus : "when the owner of the dominant tenement has acquired the right to access of light he has a house or other building with an easement of light attached to it. It is a right to be protected from a particular form of nuisance and unless the interference with the light coming to the dominant tenement amounts in law to an actionable nuisance, the owner of the dominant tenement has no right against the person who interferes with the light. Any substantial interference with his comfortable use and enjoyment of his house according to the usages of ordinary persons in the locality is actionable as a nuisance at common law The difference between the right to light and the right to freedom from smell and noise is that the former has to be acquired as an easement, in addition to the right of property, before it can be enforced ; the two latter are ab initio incident to the right of property. The wrong done is, however, in both cases the same, namely the disturbance of the owner in his enjoyment of his house. "the mere interference with the light coming to the dominant tenement or the mere fact that after the interference complained of, the owner of the dominent tenement has not so much light as before, does not of itself constitute a nuisance". "the mere interference with the light coming to the dominant tenement or the mere fact that after the interference complained of, the owner of the dominent tenement has not so much light as before, does not of itself constitute a nuisance". Colls v. Home and Colonial stores Ltd.-1904 AC 186-187 HL)"thus, it is clear that if there is mere averment that there is interference with the light coming to the dominant tenement or the mere fact that after the interference complained of, the owner of the dominant tenement has not so much of light as before, does not itself constitute cause of action for injunction. ( 13 ) THE law in India is the same. S. 33 of the Indian Easements Act 1882 (hereinafter referred to as the Act) speaks of suit for disturbance of easement. It states :"the owner of any Interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto provided that the disturbance has actually caused substantial damage to the plaintiff ". Expln. II speaks of passage of light. It states :"where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit". Expln. III speaks passage of air. It states :"where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health". Thus, it is clear that in order to justify the issuance of injunction, the plaintiff has to prove in the case of passage of light that the diminution of light by the proposed building is likely to interfere materially with the physical comfort to the plaintiff and in the case of air he should prove that the obstruction caused materially affects the physical comfort of the plaintiff. It is not enough if it is averred that by the said obstruction, passage and access of air and light are diminished. It is in this perspective that we have to read the issues framed by the trial Court. The only issue framed in this behalf is issue No. 2. which reads : "does she (plaintiff) further prove that the said supply of light and air would be diminished by the defendant making construction there ? "it is obvious that this issue is not in accordance with the requirements of law. Mere diminution is not sufficient to form a cause of action for injunction. It should amount to a nuisance in the sense that it materially affects the health of the inmates. That issue is not framed by the trial Court and the issue framed by the trial Court is misleading. In the circumstances, therefore, there is substance in the submission made by the learned Counsel for the appellant that material prejudice is caused to the defendant since the issue is not properly framed and the material issue is wanting. This Court had an occasion to consider this aspect in the case, L gory Minezes v. J C Lobo (1 ). Therein this Cour,t has ruled : "in a suit for permanent injunction restraining the defendant from interfering with the plaintiff's easementary right to free access of light and air from openings, an issue whether the interference sought to be injuncted is such that, if allowed, it will amount to nuisance, is a necessary one to be framed and decided. An infraction of an easement right of light and air becomes actionable only when the obstruction amounts to a nuisance. Whether the obstruction is such as to prevent the owner of the dominant heritage from getting through his ancient windows sufficient light and air according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling house is a question of fact in each case depending upon evidence. " thus, I am satisfied that the necessary issue is not framed by the trial Court which resulted in prejudice to the defendant in the trial. Hence, the judgment and decree passed by the trial Court and confirmed by the first Appellate Court cannot be sustaind. The appeal is entitled to succeed. ( 14 ) IN the result, the appeal is allowed. Hence, the judgment and decree passed by the trial Court and confirmed by the first Appellate Court cannot be sustaind. The appeal is entitled to succeed. ( 14 ) IN the result, the appeal is allowed. The judgment and decrees of the Courts below are set aside and the suit is remitted back to the trial Court with a direction that the trial Court shall frame an issue in the suit as suggested below and substitute the same for issue No. 2 framed by the trial court in the suit : "does the plaintiff prove that the proposed construction by the defendant is likely to substantially affect the passage of light and air through the western windows of her house so as to interfere materially with the physical comfort of the plaintiff amounting to actionable nuisance ?" The trial Court after giving opportunity to both the parties to adduce additional evidence if they so desire shall proceed to dispose of the suit in accordance with law bearing in mind the observations made in the course of this judgment. No costs. ( 15 ) PARTIES are directed to be present before the the trial Court on 26th February 1982 to take further instructions. ( 16 ) SEND back the concerned records to the trial Court forthwith. --- *** --- .