' The petitioner Mst. Parveen Aslam had filed a suit for perpetual injunction against Shaikh Muhammad Sadiq (respondent No,1), Metropolitan Corporation, Lahore (respondent No,2) and others.. The dispute relates to the construction of a building which the respondents other than the Metropolitan Corporation, Lahore, were reconstructing in Street No,120 commonly known as Haji Lal Street, Mozang, Lahore. This property was purchased by the respondents Nos.1, 3 and 4. Who after demolishing the old structure and getting the building plans approved from the Metropolitan Corporation, Lahore, started raising construction. Two storeys were already made and he had to make a third storey. That on the second storey, the respondents had installed four big windows opposite to the house of the plaintiff which invaded upon her privacy. That the third storey was also constructed having windows, doors and Balcony through which she received light and air to her rooms which will get blocked. And thus this will be an encroachment upon her easement rights which she had been enjoying since a long time. She further went on to say that the respondents intended to convert this residential property into non-residential house and this was not proper for the people of the locality, thus she asked for a perpetual injunction restraining the respondents from erecting the third storey and installing the windows towards the open space of her house which may obstruct the light and air and interfere with her privacy.
2. The learned trial Court on 20-7-1998 accepted the application for temporary injunction vide its order, dated 24-7-1998. The learned Civil Judge also framed issues on the basis of divergent pleas of the parties.
3. The stay order was challenged before the First Appellate Court presided over by Dr. Riaz Mehmood, Additional District Judge, Lahorc, who vide his judgment, dated 27-2-1999 set aside the order of the trial Court while accepting the appeal and dismissed the application asking for temporary injunction.
4. This judgment of the First Appellate Court has given a cause to the petitioner for filing this revision petition.
5. Before this Court, the counsel for Metropolitan Corporatior,, Lahore, also addressed arguments.
According to him, the sanctioned plan of this property was being reviewed and a notice has already been issued to the respondents Nos.1, 3 and 4 for multiple reasons. One reason was of raising a commercial property against a plan meant for domestic construction. He, therefore, supported the case of the petitioner.
6. The respondents Nos.1, 3 and 4 still have approved plans of the Metropolitan Corporation and they are raising construction in accordance with these plans. In case there i3 any violation of the building plans, the Metropolitan Corporation, Lahore can always take action against the said respondents in accordance with law.
7. The learned counsel for the respondents Nos.1, 3 and 4 stated that his client was committing no wrong while raising a construction since about 2 years over an area which he had purchased and which was in accordance with the building plans. That since there is an intervening street between these two properties, prima facie the petitioner had no case until she establishes that her only source of light and air was being obstructed through construction in question. He further went on to say that it was premature for the plaintiff to say as to what use will be made of the building under construction and that the statement that the building will be used for a residential hostel was based on whims of the respondent.
8. It has been pointed out that an application has been moved by the petitioner for the appointment of a Local Commission but this was not accepted. It appears in this case that both sides were asserting their positions without their being any evidence to establish as to what were the true facts prevailing on the ground. The easement right of the plaintiff has also to be ascertained as well as the fact whether these were being invaded by the building in question.
9. Section 4 of the Easements Act, 1882, defines what is the easement. This is re-produced, below:-- "An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.
' The ' land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the sei-vient heritage, and the owner or occupier thereof the servient owner."
10. An easement is not a right in personam, enforceable only against a particular individual or individuals, but it is a right in rem enforceable against the whole world. It is not a right or property, it is a right appurtenant to property. According to A another definition, an easement is a fractional right, it is a definite right of user substracted or broken off from 'he indefinite right of user which reside- in him or them who bear the dominion of subject. It is a single or particular exception, accruing to the benefit of the patty in whom the right resides, from the power of user and exclusion, which resides in the owner of the thing.
11. The essential qualities of an easement generally are:---(1) it is incorporeal; (2) it is imposed on corporeal property and not on the owner of it; (3) it confers no right to share in the profits from such property; (4) it is imposed for the benefit of corporeal property; (5) it involves two distinct tenements, the one which enjoys the easement, that is, to which the easement belongs or to which it is attached, called the 'dominant tenement' or 'dominant estate', and the other on which the easement rests or is imposed, called 'the servient tenement' or `servient estate'.
12. The effect of an easement is to restrict not to extinguish, the ordinary uses of property. A right which operates in the latter manner is not an easement but a right to the land or soil itself. The exclusive use of land cannot be demised as an appurtenant to other land, for this would be to demise one piece of land as appurtenant to another which cannot be. But the use and enjoyment of all land can be demised as an easement, so long as the restrictive character of the right is not enlarged beyond its legal limits.
13. The right to light and air may be either a natural right forming one of the incidents of property, or it may be an easement. The easement of light and air is a continuous easement and a negative easement. The owner of land can take and use for his own property as much light and air as come within the boundaries of his land, but the quantity of light and air available for his use is, in a large measure, dependent upon the acts of his neighbour. So, if his neighbour, in the free enjoyment of his own property, erects buildings thereon in such manner as to diminish the flow of light and air on to the other's land, the latter would have no redress unless he could show a right on his part precluding his neighbour from erecting such buildings. Such a right if it existed would clearly be restrictive of the other's right to enjoy his property as he, pleased, and could only, arise as an easement. An easement of light and air is the purely legal right that the servient owner shall not, by any act on the servient tenement, diminish the quantity.
14. For ascertaining as to what were the easement right of the plaintiff and how far these were being affected, the appointment of a local commission was a must who could have assisted the Court in this connection while also informing whether there were alternate easements which are being enjoyed by the plaintiff and whether easements claimed by her were in fact easement of necessity without which her access to air and light etc. Was to get blocked.
15, Thus the trial Court gave relief to the petitioner on the basis of its own perception and the learned First Appellate Court reversed the findings on account of its own perception. What was lacking in these perceptions, was the objectivity which would have made the decision of either unassailable.
16. This Court is, therefore, of the opinion that the learned First Appellate Court committed an error by not ascertaining the factual position and the demand that the judgment impugned be set aside. The appeal shall be deemed to be pending before him and he shall reconsider the matter after the report of the local Commission who will visit the spot and will also give his views about the locality. The file be put up before the learned First Appellate Court on 10th of July, 1999, and parties shall appear there on that date. The learned First Appellate Cour( shall appoint local Commission within the next 5 days and who will be directed to submit his report before 20th of July, 1999. The learned First Appellate Court shall then decide the appeal by 21st of July, 1999, on the basis of the record. Care will be taken while selecting a competent and honest person for performing the duties of a local Commission. The revision petition is, therefore, accepted in these terms with no order as to cost.