Siriwwrdene and Per era
4944Present: Keuneman J.SIRIWARDENE, Appellant, and PEEERA, Respondent.
30—C. R. Gampaha, 2,020.
Servitude of light and air—Claim in respect of new building—Building erectedcloser to common boundary—Burden of proof incumbent on plaintiff.
Where a building in respect of which a servitude of light and air iaenjoyed is demolished and a new building is erected closer to the commonboundary, the same servitude cannot be claimed in respect of the newbuilding.
Xu an action for servitude of light and air it is incumbent on the plaintiffmot only to prove that light' and air will be diminished but also to showthat there will be such a substantial diminutipn as to render his buildingappreciably less fit than it was before for occupation or use for the purposefor which it had been used.
PPEAL from a judgment of the Commissioner of Requests,Gampaha.
. E. B°. Wikremanayake, for defendant, appellant.
S.C. E. Rodrigo, for plaintiff, respondent.
Gur. adv. vult.
KEUN EMAN J.—Siriwardene and Perera
July 4, 1944. KECTTE5rAisr J.— •
The plaintiff brought this action for a declaration that he is entitledto free use of light and air to his house on the western side, and for aninjunction restraining the defendant from erecting any building so as toobstruct the free use of sueh light and air. He further claimed damagesto his building, as a result of the eutting of the foundations in respectof the building which the defendant had commenced to erect.
The learned Commissioner held against the plaintiff as regards thedamages claimed, but granted the injunction; and defendant appeals.
As regards the plaintiff’s claim to the servitude of light and air, thefacts are as follows:—The plaintiff is the owner of Lot E on plan 3055(P 1) and the defendant is the owner of the narrow strip Lot D on thesame plan towards the west. On Lot E there was an old house whichhad three windows facing towards the west. The house had been builtabout 45 years ago. It consisted of a main building, which containedtwo of the windows, and a kitchen which contained one window. In1930 the plaintiff had a plan approved by the Sanitary Board for improve-ments and extension of his main building towards the western boundary.According to the plan P 2, the main block which stood more than 12feet from the boundary was brought 12 feet further to the west and almostup to the western boundary. The building, however, was not startedtill 1940 and was not completed till 1942, and a certificate of conformityhas not yet been issued. The original wall of the main building in whichthe two windows were situated had been demolished and re-erected•almost on the plaintiff’s boundary. The kitchen was not demolishedor re-erected.
The defendant had a plan approved (see D 1) in 1943 and had com-menced building operations. The defendant’s proposed house comesalmost up to his eastern boundary, so that the two buildings will haveonly a space of a few feet between them.
Defendant’s Counsel argued that the plaintiff was not entitled to theservitude of fight and air to his new building, and I think thereis substance in this argument. The prescriptive right to the servitudewas in respect of a building set back over 12 feet from the boundary.The face of that building has now been demolished and has beenre-erected almost on the boundary.
In Pillay v. Fernando1 Wendt J. held that the taking down and therebuilding of a wall should not be considered to evince an intention ofabandoning the servitude, and that where the new window stood insubstantially the same position as the old one, although the window waslarger, the right to the servitude continued. But this depended on thequestion of fact. In the present case there is no evidence to show thatthe new windows in the main building are substantially the same as theold windows in respect of which the servitude was obtained, and, on theface of it, a window on the boundary and a window 12 feet from the boun-dary would appear to raise different problems. Further, there is nothingto show that if the windows had stood in the old position, light and ailwould have been obstructed.
i 14 N. L. R. 138.
Tissera and William
In my opinion the plaintiff’s claim in respect of the windows in themain block fails.
The kitchen windows stands on a different footing. It has not beenaltered and the servitude subsists. But defendant’s Counsel arguedthat the evidence adduced did not establish that an infringement ofthe right can be reasonably anticipated.
In Goonewardena v. Mohideen Koya & Co.1 and in Zahira Vmma v.Abdul Bahimam 2 the principles laid down in Colls v. Home ColonialStores 3 have been adopted in Ceylon. It was accordingly incumbenton the plaintiff not only to prove that the light and air will be diminishedbut he must also show that there will be such a substantial diminutionas to render his building appreciably less fit than it was before for occupa-tion or use for the purpose for which it had been used. The evidence onthis point is very meagre. The plaintiff said generally—“ If a building,comes up alongside my western wall I will lose my right of light whichI get from the three windows ”. His witness Samaratunga, V. H., said—" If a wall is built on the western boundary the window light would berestricted. The kitchen window is 8 feet high from the ground.”This last point is of importance, for the plaintiff said “ I expect to putup a building which is 9 feet high.” Also Peter de Saram, Supervisorof the Sanitary Board, called by the defendant, said—“ If the defendant’sbuilding is put up, the light and air to the plaintiff’s building will beblocked ”, but added—“ If the improvements asked in D 4 are effected,the building will have enough light ”. I) 4 is a letter by the Chairman,Sanitary Board, directing plaintiff to do certain things before he canobtain a certificate of conformity. In default the plaintiff was liable tobe prosecuted.
In my opinion the evidence is insufficient to prove that the diminutionof light and air -will be so substantial as to render the building unfit forthe purpose for which it is used. No real attempt has been made toestablish this in the evidence. All that has been proved is that there-will probably be some restriction in the light and air. The present actionmust accordingly fail.
The appeal is allowed with costs, and the plaintiff’s action dismissedwith eosts. But the right is reserved to the plaintiff to bring any furtheraction which may be available to him later in respect of any infringementof the servitude of light and air coming through the kitchen windowon the western side.
SIRIWARDENE, Appellant, and PERERA, Respondent