JUDGMENT Mr. K. Kannan, J. (Oral):- The following substantial questions of law arise for consideration in the second appeal:- 1. Whether the lower appellate court was justified in reversing the decision of the trial court to restrain the defendants from putting up construction, on obstructions to easementary right of light and air, omitting to note that there was sufficient light and air through courtyard existing within the plaintiffs’ own property? 2. Whether the court could have granted relief of injunction when appropriate and adequate remedy would have been a relief of damages? 2. The second appeal is brought against reversing judgment of the plaintiff’s claim for injunction restraining the defendants from putting up any construction adjoining his own house at the west on a plea that it would invade his easementary right of light and air. Although in the suit, the plaintiff had also claimed an easement of necessity, the court had observed that during the course of proceedings, the plaintiffs restricted their right only to the easementary right of light and air. It was admitted that the plaintiffs’ construction with windows on the west at the first floor existed for more than 50 years and the plaintiffs had obtained an easementary right of light and air. 3. The defendants took up a plea that the plaintiffs have adequate light and air through the open spaces running along side the room at the first floor and that further there was an open courtyard that allowed for sufficient ventilation and light so that there was no actionable nuisance or invasion of the plaintiffs to justify a prayer for injunction. 4. The trial court, while examining the plaintiffs’ case of complaint of alleged invasion of their right, observed that the plaintiffs had not brought on record any material which would show that there is substantial prejudice caused to them by the construction and he had also observed that there was a dehlan in the house of the plaintiffs through which sufficient light and air could pass to the whole of the house. The trial court had also noted that the plaintiffs had admitted that the defendants had constructed their house with some gap and that the defendants had not made any construction alongside the window of the plaintiffs’ house. 5. The trial court had also noted that the plaintiffs had admitted that the defendants had constructed their house with some gap and that the defendants had not made any construction alongside the window of the plaintiffs’ house. 5. The appellate court, while setting aside the trial court’s judgment, had made pointed reference to the trial court’s observation that there was a gap between the two buildings and held that there was no such admission anywhere in the evidence. He went on to observe that if the plaintiffs had prescribed right to light and air by allowing for construction that existed in its state for more than 50 years, even the contention of the defendants that there was a courtyard in the house of the appellants/plaintiffs as a source of sufficient light and air would not avail to him. 6. I must point out immediately that the above observations of the appellate court which truly is the fulcrum on which a reversal of the judgment has come about is a wrong statement of law. The right to light and air which is in the nature of dominant tenement over the owner’s right to put up construction in his own property must also be examined in the light of the mischief that a construction could cause. In the modern days with severe constraint in space, even town planning scheme allow for construction with limited set back space. The modern amenities have also come to provide even within closed spaces appropriate lighting and methods of securing ventilation through fan or air conditioners. I have seen through the sketch P.1 filed alongwith the plaint. There is no window on the western side of the plaintiffs house on the ground floor. The cause of action for the suit is the attempted construction of the defendants at the first floor of their property which can cause impairment of flow of light and air through the windows that plaintiffs have in their building only at the first floor. There are three rooms which are marked in the plan on the west and on the eastern side of these respective rooms, there are two doorways for two of the rooms and for the 3rd room on the south the doorway is inside the middle room. Along the eastern side there is an open space marked as delhan and further east is shown an open space marked as chowk. Along the eastern side there is an open space marked as delhan and further east is shown an open space marked as chowk. I gather that these are the open spaces and they ought to provide sufficient light and air. 7. A plaintiff, who is seeking for injunction was required to state that notwithstanding these open spaces on the east, there were still inconveniences and insufficiency of light. The court was looking for a burden wrongly for the defendants to show that there was sufficient light by the existence of the courtyard and the open spaces. The court omitted to note that the easement is an invasion of the true owner right in property by creating a dominant tenement for an easement holder and, therefore, as a restriction of use to the owner of the property, the person who asserts such a right must prove the inconvenience to justify a claim for easement. Chapter IV of the Easement Act, 1882 deals with the disturbance of easement. Section 33 of the Act reads as under:- “33. Suit for disturbance of easement.—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. Explanation I.—The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34. Explanation II.—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. Explanation III.—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.” 8. Explanation III.—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.” 8. Explanation (I) is really the content of when the plaintiff would complain of disturbance of his easement. It should be such as materially diminish the value of the dominant heritage. The explanation (II) qualifies the right by stating that no damage would be substantial unless it falls within the 1st explanation. It must be such as again that can prevent him from carrying his accustomed business. Therefore, there must have been evidence from the plaintiffs to say that any construction would materially alter the activities which he was accustomed to doing in the three rooms at the first floor. In the same way, explanation (III) is a right that could be exercised in terms of light and this has also to be shown as that which will materially interfere with the physical comfort. 9. In this case, the existence of a courtyard and a stretch of an open space adjoining the three rooms ought to have a balancing effect for the inconvenience which the plaintiffs could have been put to by the construction coming from the side. The injunction granted by the court below without adverting to the most crucial aspect of the necessity of proof of substantial damage has caused a wrong judgment to be entered by the court below which would require to be set aside. 10. However, considering the fact that the plaintiffs had enjoyed a certain amount of light and air and where by construction the defendants put up, there could be a diminishing of such a right, any mechanical or electrical contrivance that they may have to provide themselves could be the measure of damages that the plaintiffs could still obtain. While setting aside the judgment of the court below, I award to the plaintiffs damages of Rs. 15,000/- as payable by the defendants. 11. The judgment of the court below is set aside and the second appeal is allowed partly subject to the provision of damages, referred to above. ———————— Anil Kumar Jain & Ors. v. State of Haryana & Ors.