vustudents
04-30-2012, 08:31 PM
(a) Exclusive right to enjoy: The exclusive right of every owner of immovable property (Subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereof.
(b) Rights to advantages arising from situation: The right of every owner of immovable property (Subject of any for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations of the rights above-referred to
(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
(b) The right of every owner of land that the air passing thereof shall not be unreasonably pollutes by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(e) The right of every owner of land, in its natural condition, shall have to support naturally rendered by the subjacent and adjacent soil of another person.
Explanation: Land is in its natural condition, when it is not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
(f) The right of every owner of land that, whit in his own limits, the water which naturally passes or percolates by, over or though his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined, natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force, or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling, on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
Comments
Scope of the section: Clauses (a) and (b) describe natural rights of owners of immovable property and the operative part of section 7 provides that rights of easement may be acquired in respect of such property which would curtail and restrict the natural rights. The illustrations under the section set out some of theses natural rights. Every owner of land enjoys as an incident arising by law from the ownership of his land, and in addition to his rights over his own land, certain rights which are generally called natural rights arising jure natural. An easement is a right enjoyed over and above the natural rights and the burden of an easement involves, in general, a diminution of, or detraction from, the natural rights of the servient tenement. Every owner has a natural right to support and the water. There is no natural right to light or air. Illustration (e) is of a natural right covered by clause (b). The effect of this illustration read with the explanation appended to it is that the right referred to in clause (b) is applicable to land in its unburdened and natural state and not be structures built upon the land. This is not to say that such similar rights cannot be acquired by such structure. But its not a natural right and if the structure intends to claim such a right it would only be a process of prescription. AIR 1955 Bom. 285.
Natural rights and easements- - distinction: An easement right is carved out in favour of a dominant heritage and is imposed on a serivent heritage. In every case the right is exercised quo owner or occupier of a serivent heritage. AIR 1957 MP 44. Natural rights are inherent in land, but that easements are created at the will of the owner of the land over which they are to be used, and it will be readily seen that cases may frequently occur in which easements created by an owner of land will be totally inconsistent with the natural rights which the law has annexed. The guestions then arise, whether a land-owner can create such inconsistent rights, and if he can, which of the rights is to give place to the other. Natural rights are not so inseparable from the land to which the law has annexed them as to prevent the owner form creating easements at variance with them, although the land-owner has not such unrestricted dominion over his rights as to be able to assign them to another person apart from his dominant tenement. The effect of the creation of an adverse easement is to cause suspension of the natural rights during its existence, and if the easement is at any time extinguished the natural rights instantly revive. Section 7 of the easement act leaves no doubt that every owner of an immovable property has a right to enjoy such natural benefits as flow from its situation. But in case of two neifghbours, both have a similar right. Therefore, in the name of enjoying the natural rights accruing from its situation, an owner of one property cannot subject his neighbour to a disability now or in future, by which the latter will be prevented from enjoying the natural rights flowing from the situation of his own property. Therefore, natural rights which a person enjoys in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others. Where similar rights are available to all or to a section of the society, they must be reconciled. Where private reconciliation of such rights is not possible, recourse must be had to the adjudicatory machinery established by the Government. Parties to a dispute cannot be left to fend themselves to protect their rights. Right to property it indeed important but it cannot be stretched to the extent of saying that if the defendant in the name of enjoying his property, takes step now to injure plaintiff’s right to future, the plaintiff cannot seek the assistance of the court though he can take privet action to protect his rights and to prevent the emergence of the defendant’s rights in future. This feudal belief does not fit into the modern concept of egalitarian society based upon equality of opportunity and rule of law. It is, therefore, necessary to modify the principal. Every person has a right to enjoy the property without disturbing his neighbour in doing so. Both have equal rights. Mutual respect of each others right must exist and must exist and must be enforced. 20 (1979) GLR 773.
Suit relating to right of passage blocked by defendants: No particulars of land with Khasra numbers given on which passage was claimed. Report of Patwari showed that persons other than defendants had encroached upon land which was a thoroughfare. Report of local commissioner not supporting case of petitioner. Court below did not commit any material irregularity of illegality in passing the impugned judgments and decrees. Revision petition dismissed in circumstances. 1989 M L D 1089.
Right of privacy: Customary right of easement of purdah or privacy has to be pleaded and proved by evidence. Such custom should be specific, certain and continuous from time immemorial. Such customary right is different from easement acquired by prescription. 1984 CLC 3244.
Easements- - restrictive of certain rights: The section embodies in specified terms the general principals of law that easements are essentially restrictive in their nature. That is, easements do not exclude that the rightful owner of land over which it is exercised from enjoyment thereof. They merely restrict such rights. The classification of easements as affirmative and negative ones is a mere convenient classification and is not inconsistent with the proposition that easements in their nature are restrictive. The effect of an easement being not to extinguish or exclude the ordinary user of property, a right which goes to operate in this manner as not an easement but a right or interest but a right or interest in the land itself. 1 Macq SC App. 305. Such latter rights are capable of existence and disposition apart the dominant heritage. Disturbance of such latter rights amounts to a trespass while that of an easement is a nuisance. A right to take all the minerals under a man’s land is not an easement but a right to the soil itself- - an interest in land. AIR 1934 Sind 1. Thus when the defendants used the plaintiff’s roof for sitting by day and sleeping by night the court refused to hold the defendants acquired an easement in respect of it in that it would exclude the rights of the rightful owner. So also when in a case the plaintiffs had built latrines on the land not belonging to them, and used them for a long series of years. It was held that an easement of this sort, was unknown the law .AIR 1934 Sind 1. Thus under section 7 easements are described as restrictions on two classes of rights:
(i) rights in regard to immovable property; and
(ii) the right of every owner of land to enjoy the natural advantages arising from its situation which are hereafter called natural rights.
Right to light and air: At common law the owner of land has no right to light, for the general doctrine of law with respect to land is that everyone may build upon or otherwise utilize his own land regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and buildings or another person. Every man may open any number of windows looking; over his neighbour’s land as the interference which a neighbour’s privacy, or with his prospect, gives the latter no cause of action in the absence of other circumstances. On the other hand the neighbour may be putting erections on his own land, obstruct the light which would otherwise reach the other’s windows. The owner of property has no right ex jure naturae to the passage of air to his tenement over his neighbour’s land, and consequently he has no natural right to prevent his neighbour from using his land in such a way as to obstruct the free passage of air to apertures in those buildings, and can prevent his neighbour who owns the servient tenement from interfering with the supply of air by building upon that tenement or otherwise. This easement of air is very similar to the easement to light. It is essential that the easement, unless existing by virtue of express grant or contract. Should be in respect of a strictly defined and limited aperture. Illustrations(b) and (d) refer to the natural rights of every individual land-owner to the unpolluted flow of air and the light and air passing vertically to his land. Light and air publici juris, that is every owner of land is entitled to all the air and light the would come to his land subject of course to the right of every land-owner to build on his land. A right in respect of light and air passing laterally or horizontally to a piece of land can be acquired by an easement which would restrict the right of an owner of land to build thereon under section 7 (a). The natural right of unpolluted flow of air can be restricted by a person acquiring a right to issue smoke, obnotions, smell or to commit any other nuisance of the same nature which would be in the nature of a restriction of a natural right, that is an easement. But unlike right of support of soil by soil and of flow of water in a defined course, the owner in the case of light and air has originally no right to enjoyment which can prevail against his neighbour’s right to make any use of his land as he may like, although such use will interfere with the natural transmission of light and air. It was not enough for the plaintiff to show that light and air is less than before but to constitute actionable obstruction of free passage of light or air to openings in a house there must be substantial deprivation of light enough to render occupation of house uncomfortable according to ordinary notice of making. Even though a right of easement of light and air was established, a person, further was not entitled to an injunction unless disturbance of his easement materially affected his enjoyment. 1984 CLC 3244.
According to the case of R. G. Sehwani co-operative Housing Society Ltd. V. Haji Ahmad. PLD 1983 Kar. 11, the construction designed in a manner so as not to obstruct light and air of the plaintiffs and other air of the neighboures. No definite instance of such obstruction was produced. The plaintiff also did not examine any Architect o prove proposed building on completion with prescribed angle likely to obstruct light and air of neighbours. Besides angles maintained compulsory side space also was left in all plots. The obstruction to plaintiff’s right of light and air was not established.
Easement of light and air: The plaintiffs filed the suit for permanent injunction with cause of action that construction of multistoreyed building would obstruct their light and air. The plaintiffs failed to establish that multi-storeyed building would obstruct light and air which was passed on the plaintiff’s property vertically. Angle maintained in multi-storeyed building fully protection rights of plaintiffs to receive light and air which was passed vertically. The suit was dismissed as being not maintainable. In view of finding that construction of multisoreyed building would not obstruct the plaintiff’s light and air, contention that plaintiffs had been enjoying right of easement of light and air for more than 20 years was of no significance. NLR 1982 CLJ 401.
Temporary injunction: The suit was filed to grant of injunction. No diminution in plaintiff’s right to air and light so to constitute nuisance, the temporary injunction, was rightly refused. The question involved in application for temporary, injunction, inextricably linked with suit itself. No grievance could legitimately be made about observations of court as regards matter involved in suit. Court has power to grant injunction at interiocutory stage. Such injunction, however was granted in rare and exceptional cases. OLD 1975 Kar. 694.
Leave to appeal: Three courts below after examining material before them had come to conclusion that there did not exist prime facie case in plaintiff’s favour; as also balance of convenience. Courts had considered all the aspects of the case and an equitable relief had been refused to plaintiffs. Courts had directed defendants that they would provide an artificial support court’s practice being not to interfere in interlocutory matters, leave to appeal was refused in circumstances. 1991 SCMR 305.
(b) Rights to advantages arising from situation: The right of every owner of immovable property (Subject of any for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations of the rights above-referred to
(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
(b) The right of every owner of land that the air passing thereof shall not be unreasonably pollutes by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(e) The right of every owner of land, in its natural condition, shall have to support naturally rendered by the subjacent and adjacent soil of another person.
Explanation: Land is in its natural condition, when it is not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
(f) The right of every owner of land that, whit in his own limits, the water which naturally passes or percolates by, over or though his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
(g) The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined, natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force, or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling, on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
Comments
Scope of the section: Clauses (a) and (b) describe natural rights of owners of immovable property and the operative part of section 7 provides that rights of easement may be acquired in respect of such property which would curtail and restrict the natural rights. The illustrations under the section set out some of theses natural rights. Every owner of land enjoys as an incident arising by law from the ownership of his land, and in addition to his rights over his own land, certain rights which are generally called natural rights arising jure natural. An easement is a right enjoyed over and above the natural rights and the burden of an easement involves, in general, a diminution of, or detraction from, the natural rights of the servient tenement. Every owner has a natural right to support and the water. There is no natural right to light or air. Illustration (e) is of a natural right covered by clause (b). The effect of this illustration read with the explanation appended to it is that the right referred to in clause (b) is applicable to land in its unburdened and natural state and not be structures built upon the land. This is not to say that such similar rights cannot be acquired by such structure. But its not a natural right and if the structure intends to claim such a right it would only be a process of prescription. AIR 1955 Bom. 285.
Natural rights and easements- - distinction: An easement right is carved out in favour of a dominant heritage and is imposed on a serivent heritage. In every case the right is exercised quo owner or occupier of a serivent heritage. AIR 1957 MP 44. Natural rights are inherent in land, but that easements are created at the will of the owner of the land over which they are to be used, and it will be readily seen that cases may frequently occur in which easements created by an owner of land will be totally inconsistent with the natural rights which the law has annexed. The guestions then arise, whether a land-owner can create such inconsistent rights, and if he can, which of the rights is to give place to the other. Natural rights are not so inseparable from the land to which the law has annexed them as to prevent the owner form creating easements at variance with them, although the land-owner has not such unrestricted dominion over his rights as to be able to assign them to another person apart from his dominant tenement. The effect of the creation of an adverse easement is to cause suspension of the natural rights during its existence, and if the easement is at any time extinguished the natural rights instantly revive. Section 7 of the easement act leaves no doubt that every owner of an immovable property has a right to enjoy such natural benefits as flow from its situation. But in case of two neifghbours, both have a similar right. Therefore, in the name of enjoying the natural rights accruing from its situation, an owner of one property cannot subject his neighbour to a disability now or in future, by which the latter will be prevented from enjoying the natural rights flowing from the situation of his own property. Therefore, natural rights which a person enjoys in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others. Where similar rights are available to all or to a section of the society, they must be reconciled. Where private reconciliation of such rights is not possible, recourse must be had to the adjudicatory machinery established by the Government. Parties to a dispute cannot be left to fend themselves to protect their rights. Right to property it indeed important but it cannot be stretched to the extent of saying that if the defendant in the name of enjoying his property, takes step now to injure plaintiff’s right to future, the plaintiff cannot seek the assistance of the court though he can take privet action to protect his rights and to prevent the emergence of the defendant’s rights in future. This feudal belief does not fit into the modern concept of egalitarian society based upon equality of opportunity and rule of law. It is, therefore, necessary to modify the principal. Every person has a right to enjoy the property without disturbing his neighbour in doing so. Both have equal rights. Mutual respect of each others right must exist and must exist and must be enforced. 20 (1979) GLR 773.
Suit relating to right of passage blocked by defendants: No particulars of land with Khasra numbers given on which passage was claimed. Report of Patwari showed that persons other than defendants had encroached upon land which was a thoroughfare. Report of local commissioner not supporting case of petitioner. Court below did not commit any material irregularity of illegality in passing the impugned judgments and decrees. Revision petition dismissed in circumstances. 1989 M L D 1089.
Right of privacy: Customary right of easement of purdah or privacy has to be pleaded and proved by evidence. Such custom should be specific, certain and continuous from time immemorial. Such customary right is different from easement acquired by prescription. 1984 CLC 3244.
Easements- - restrictive of certain rights: The section embodies in specified terms the general principals of law that easements are essentially restrictive in their nature. That is, easements do not exclude that the rightful owner of land over which it is exercised from enjoyment thereof. They merely restrict such rights. The classification of easements as affirmative and negative ones is a mere convenient classification and is not inconsistent with the proposition that easements in their nature are restrictive. The effect of an easement being not to extinguish or exclude the ordinary user of property, a right which goes to operate in this manner as not an easement but a right or interest but a right or interest in the land itself. 1 Macq SC App. 305. Such latter rights are capable of existence and disposition apart the dominant heritage. Disturbance of such latter rights amounts to a trespass while that of an easement is a nuisance. A right to take all the minerals under a man’s land is not an easement but a right to the soil itself- - an interest in land. AIR 1934 Sind 1. Thus when the defendants used the plaintiff’s roof for sitting by day and sleeping by night the court refused to hold the defendants acquired an easement in respect of it in that it would exclude the rights of the rightful owner. So also when in a case the plaintiffs had built latrines on the land not belonging to them, and used them for a long series of years. It was held that an easement of this sort, was unknown the law .AIR 1934 Sind 1. Thus under section 7 easements are described as restrictions on two classes of rights:
(i) rights in regard to immovable property; and
(ii) the right of every owner of land to enjoy the natural advantages arising from its situation which are hereafter called natural rights.
Right to light and air: At common law the owner of land has no right to light, for the general doctrine of law with respect to land is that everyone may build upon or otherwise utilize his own land regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and buildings or another person. Every man may open any number of windows looking; over his neighbour’s land as the interference which a neighbour’s privacy, or with his prospect, gives the latter no cause of action in the absence of other circumstances. On the other hand the neighbour may be putting erections on his own land, obstruct the light which would otherwise reach the other’s windows. The owner of property has no right ex jure naturae to the passage of air to his tenement over his neighbour’s land, and consequently he has no natural right to prevent his neighbour from using his land in such a way as to obstruct the free passage of air to apertures in those buildings, and can prevent his neighbour who owns the servient tenement from interfering with the supply of air by building upon that tenement or otherwise. This easement of air is very similar to the easement to light. It is essential that the easement, unless existing by virtue of express grant or contract. Should be in respect of a strictly defined and limited aperture. Illustrations(b) and (d) refer to the natural rights of every individual land-owner to the unpolluted flow of air and the light and air passing vertically to his land. Light and air publici juris, that is every owner of land is entitled to all the air and light the would come to his land subject of course to the right of every land-owner to build on his land. A right in respect of light and air passing laterally or horizontally to a piece of land can be acquired by an easement which would restrict the right of an owner of land to build thereon under section 7 (a). The natural right of unpolluted flow of air can be restricted by a person acquiring a right to issue smoke, obnotions, smell or to commit any other nuisance of the same nature which would be in the nature of a restriction of a natural right, that is an easement. But unlike right of support of soil by soil and of flow of water in a defined course, the owner in the case of light and air has originally no right to enjoyment which can prevail against his neighbour’s right to make any use of his land as he may like, although such use will interfere with the natural transmission of light and air. It was not enough for the plaintiff to show that light and air is less than before but to constitute actionable obstruction of free passage of light or air to openings in a house there must be substantial deprivation of light enough to render occupation of house uncomfortable according to ordinary notice of making. Even though a right of easement of light and air was established, a person, further was not entitled to an injunction unless disturbance of his easement materially affected his enjoyment. 1984 CLC 3244.
According to the case of R. G. Sehwani co-operative Housing Society Ltd. V. Haji Ahmad. PLD 1983 Kar. 11, the construction designed in a manner so as not to obstruct light and air of the plaintiffs and other air of the neighboures. No definite instance of such obstruction was produced. The plaintiff also did not examine any Architect o prove proposed building on completion with prescribed angle likely to obstruct light and air of neighbours. Besides angles maintained compulsory side space also was left in all plots. The obstruction to plaintiff’s right of light and air was not established.
Easement of light and air: The plaintiffs filed the suit for permanent injunction with cause of action that construction of multistoreyed building would obstruct their light and air. The plaintiffs failed to establish that multi-storeyed building would obstruct light and air which was passed on the plaintiff’s property vertically. Angle maintained in multi-storeyed building fully protection rights of plaintiffs to receive light and air which was passed vertically. The suit was dismissed as being not maintainable. In view of finding that construction of multisoreyed building would not obstruct the plaintiff’s light and air, contention that plaintiffs had been enjoying right of easement of light and air for more than 20 years was of no significance. NLR 1982 CLJ 401.
Temporary injunction: The suit was filed to grant of injunction. No diminution in plaintiff’s right to air and light so to constitute nuisance, the temporary injunction, was rightly refused. The question involved in application for temporary, injunction, inextricably linked with suit itself. No grievance could legitimately be made about observations of court as regards matter involved in suit. Court has power to grant injunction at interiocutory stage. Such injunction, however was granted in rare and exceptional cases. OLD 1975 Kar. 694.
Leave to appeal: Three courts below after examining material before them had come to conclusion that there did not exist prime facie case in plaintiff’s favour; as also balance of convenience. Courts had considered all the aspects of the case and an equitable relief had been refused to plaintiffs. Courts had directed defendants that they would provide an artificial support court’s practice being not to interfere in interlocutory matters, leave to appeal was refused in circumstances. 1991 SCMR 305.