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Present: Fisher C.J. and Drieberg J.
ZAHIBA UMMA v. ABDUL BAHIMAN.
203—D. C. Colombo, 22,103.
Servitude of light and air—Construction of building to obstruct the access
Where the plaintiff sued the defendant to restrain him fromerecting a building so as to obstruct the access of light and air toplaintiff's premises,—
Held, that the onus lay on the plaintiff to prove that, if cheproposed building was erected, the plaintiff's building could not beput to the purpose for which it is put as beneficially as it has beenheretofore.
Where a person with knowledge or warning of another’s right orclaim of right does something which infringes or will infringe therights of another, the Court will interfere to protect the person whoserights are infringed or threatened by a mandatory or prohibitory in-junction according to circumstances.
PPEAL from a judgment of the District Judge of Colombo.The facts appear from the judgment of the Chief Justice.
Hayley, K. C. (with Canakaratne), for defendant", appellant.
H. V. Perera (with Navaratnam), for plaintiffs, respondents.
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April 4, 1928. Fisher C.J.—
• Zahira In this c&Be the 1st plaintiff is the owner of premises known as44, Third Cross street, Pettah, in Colombo, and the 2nd plaintiff isRahiman her husband. The defendant is the owner of adjoining premisesupon which there stood a building which has been pulled down andupon the site of which he has begun to erect another building.The plaintiffs sue the defendant to restrain him from erecting thisnew building so as to obstruct or diminish the access of light andair to two windows on the south-western wall of 1st plaintiff’spremises.*
The right of the plaintiff to the access of light and air through thetwo windows is not now disputed, but the substantial and maincontention of the defendant is that if and when the building thedefendant wishes to erect is completed the effect on the 1st plain-tiff’s premises will not be such as to constitute an infringement ofher legal rights inasmuch as, so he contends, “ the 1st plaintiff’spremises will not be less fit for yse and occupation after theconstruction of the said building.”
The 1st plaintiff’s building is of an .oblong shape. It is enteredfrom Third Cross street and the door, or something that serves for adoor, is co-extensive in size with the end of the building which abutson Third Cross street. At the end of the building away from thestreet there is a staircase leading up to a first floor room 18 feet by10 feet in size which is lighted by five windows. Of these, the twoon the south-west are the windows which the plaintiffs complainwill be obstructed by the defendant’s building. On the oppositeinside wall to these windows is a large glass window opening on t,othe ground floor of the building, and through this window the lightfrom the windows in the south-west wall of the building reachesthe ground floor.Substantially, therefore, theonly light ofthe
ground floor is thelight from the entrance andthe lightborrowed
from the two windows on the south-west wall.
The evidence shows,that the premises of the 1st plaintiff are in acommercial locality and are used as a store for cement and hard-ware and that sales take place there. The witness called for thedefendant states that the first floor is used as an office.
The proposed building—and by the proposed building I meanthe building as originally intended to be constructed at the date ofthe action—wouldleave no intervening spacebetweenthe1st
plaintiff’s and thedefendant’s premises, but would berightup
against the 1st plaintiff’s building, with the result that the twowindows. affected would, according to the evdence of the one witnesscalled for the defendant, be left with an opening of 5£ inches in heightonly, and this narrow slit would open on to a roof sloping upwards
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at Moh an angle as would make the ridge of the roof higher than ^thq windows. ..The two windows would in fact be partially sealed up. Fibiobb Q£.It is obvious then that the actual diminution of access of light and 1air would be very considerable. In passing, 1 may say that in my Ummam.view the learned Judge was right in confining the case to the stateof things upon which the proceedings were instituted. There was'no express abandonment by the defendant of his original intention,and though the suggested modification of his plans might well haveafforded a basis for negotiation, he cannot resist and defend himselfagainst the plaintiffs’ claim by proposals which include the alterationand adaptation of the 1st plaintiff’s premises so as to modify orminimize the loss of light and air which the erection of the buildingcomplained of involves.
The first question, therefore, is whether the proposed buildingwould infringe the plantiffs’ legal rights.
The law in England as to the legal rights of a plaintiff in casessuch as this was exhaustively considered by the House of Lords inColls v. Home & Colonial Stores,1 and the law as laid down in thatcase was adopted by this Court as applicable to the rights of partiesin Ceylon in similar circumstances in Ooonewardene v. Mohideen Koya& Co* On the basis of these decisions, in order to show that theirlegal rights would be infringed, the onus lay on the plaintiffs to showthat if the proposed building were erected the 1st plaintiff's buildingcould not be used for the purpose to which it is put as beneficiallyas it has been heretofore. This is not a case .of premises used forresidence. The ground floor of. the premises in question, and theextent to which the . ground floor would be affected seems to havebeen the question upon which this case was tried and decided,is used as a store for cement and hardware where sales take place.
It is not therefore a place which requires light in any special degree.
On the other hand, the degree of light and air enjoyed by such astore must have some relation to its value as such, and it couldnot be contended that the 1st plaintiff must submit to her storebeing turned into a cellar. The evidence shows that the grounddoor, apart from the light coming through the entrance, dependsfor light entirely, or almost entirely, on the borrowed light to whichI have referred. The only witness called for the defendant said incross-examination : —
“The new building which the defendant is constructing is fora shop and store. I call the defendant’s and plaintiff’spremises stores because goods are kept there and sold.
If this light is taken from plaintiff’s premises it cannot heused for anything else except for a godown. Now it canbe used for storing goods or keeping goods and selling them
I (1904) A. C. 179.
113 N. L. R. 264
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there. If these two windows are blocked there would’ besufficient light, because there would be three windows leftintact. The light from those three windows would haveto travel obliquely to go to the godown. Now it travelsdirect and finds its way through another window in- adirect line. So that the amount of light coming from theside windows would be a great deal less if these twowindows are blocked.
The learned Judge who tried the case inspected the premisesand accepted the evidence of the expert witness called for theplaintiffs as regards the diminution of light to the ground floor,which he said was in accordance with the opinion formed by himat his inspection.
On a consideration of the whole of the evidence I do not thinkthat any other deduction can be drawn than that the proposedbuilding would render the 1st plaintiff’s building less fit than it wasfor the purpose for which it is used and that therefore her legalrights would be infringed.
The question then arises whether it is a case in which an injunctionshould be granted.
The law seems to be this: If a man with full knowledge or duewarning of another’s rights or claim of rights does something whichinfringes or begins to do something which if completed will infringethe rights of another he acts at his own risk, and the Court willinterfere to protect the person whose rights are infringed orthreatened by a mandatory or prohibitory injunction according tothe circumstances. Otherwise the Court would in effect be vestingin the person acting arbitrarily and in defiance of another's legalrights something in the nature of a right of compulsory purchase.This point of view is dealt with by Lord Finlay in a passage in hisjudgment in Leeds Industrial Co-operative Society, Ltd. v. Slack1to which my brother Drieberg has drawn my attention.
It is quite clear from the letter written by the plaintiffs' proctorson October 18, 1926 (document P 2), that the defendant had fullnotice of the position taken up by the plaintiffs. The defendanthimself did not go into the witness box, and there is nothing to showthat he was encouraged to proceed with the building by any actionor conduct on the part of the plaintiffs. Even if there were suchevidence, unless it amounted to giving leave and licence or provedfacts which created an estoppel, it could hardly be used as a basisfor refusing a prohibitory injunction. At the most it could onlyaffect our decision as to costs.
It is to be noted too that the defendant put forward a claim inreconvention for damages based on the plaintiffs having “ acted
i (7924) A. C. 850, at pp. 860, 861.
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maliciously and dishonestly, ” but no issue on this claim was framed,nor did the defendant proceed any further with it.
Under all the circumstances, it is in my opinion impossible in thiscase to refuse the plaintiffs the relief which is their pritna facieright* namely, an injunction.
The judgment of the District Court must be affirmed, and theappeal dismissed with costs.
Dbibberg J.—I agree.
ZAHIRA UMMA v. ABDUL RAHIMAN