ALI MUHAMMAD AND Another vs ABDUL GHANI
This matter arises from a petition for special leave to appeal against the judgment of the Sind High Court, which accepted the respondent's revision and set aside the appellate decree granted in favor of the petitioners. The core legal question involved whether the closure of a 'Magh' constituted an actionable infringement of the right of easement of light and air, causing material discomfort to the petitioners. The Supreme Court held that the concurrent findings of fact by the trial Court and the High Court established that the petitioners failed to prove any material discomfort, damage, or nuisance, and that partial impairment of air and light does not amount to an actionable infringement of an easement. The petition was accordingly dismissed on the basis that the High Court's factual findings based on evidence warranted no interference.
- Does the partial impairment of air and light constitute an actionable infringement of the right of easement?
- Can a second appellate or revisional court interfere with concurrent findings of fact regarding material discomfort?
- What must a plaintiff prove to succeed in a suit for mandatory injunction regarding the closure of a 'Magh'?
ORDER
S. A. NUSRAT, J.-The judgment dated 24-10-1982, which has given rise to this petition for special leave, was passed by a learned Single Judge of the Sind High Court in the background of the following facts.
2. The petitioner No. 1 is the owner of a portion of a residential house on the first floor of a building situated on survey No. B/1303-1304, Chhoti Ghitti, Hyderabad which was acquired by him through the Settlement Department. Both the petitioners have been residing in the said house since 1952 whereas the respondent has been in possession of one room of the same building since 1954 which is constructed over the portion of the roof of the petitioners' room. The petitioners filed a suit on 4-10-1975 in the Court of Civil Judge, Hyderabad seeking mandatory injunction against the respon--dent directing him to open the 'Magh' as being appurtenant to their room. The petitioners' suit was dismissed by the learned trial Court on 7-2-1978, whereupon the matter was taken up by them to the first appellate Court where they succeeded and the suit was decreed in their favour by the learned District Judge, Hyderabad as per his judgment dated 22-12-1980. The respondent challenged the judgment and decree passed by the learned first appellate Court by filing a revision in the Sind High Court which was accepted as per impugned judgment.
3. The learned trial Court as well as the learned High Court have found on the basis of evidence that the room of the petitioners had two big windows towards the west, two windows and one door in the northern side and one door on the eastern side opening towards the staircase and another door opening in the balcony. This description of the room of the petitioners stood uncontroverted, as found by the learned trial Court as well as by the learned High Court. In view of such evidence it was found that the closure of the `Magh' did not materially affect the physical comfort or deprive the petitioners of the passage of air and light to their room. At best it was found to be a case of only diminution of air to the petitioners' house relying on case law the learned trial Court as well as the High Court observed that partial impairment of air and light could not be treated as an infringement of the right of easement. The learned High Court's findings, that the petitioners had failed to prove That they had sustained any damage or nuisance nor proved that any material discomfort was caused to them as a result of the removal of the 'Magh', are the findings of fact based of appreciation of evidence.
4. The matter having been decided as aforesaid, on the basis of evidence, no exception can be taken to the findings of the learned High Court. The petition has no merit and, therefore, is dismissed.