( 1 ) WHILE the plaintiff has preferred the second appeal in respect of the construction on ABCD wall the defendant has filed a memorandum of cross-objections in regard to the superstructure on EFGH wall. The first question strenuously contended by Shri Suryaprakasam, learned advocate for the appellants was that his right to light and air is affected by the construction on the ABCD wall. In paragraph 7 of the judgment of the lower appellate court it is found that the plaintiffs have got by prescription the easementary right to the passage of light and air to their house through the windows and doors in the northern wall of their house from the first defendants site to the north of the compound wall.

( 2 ) THE next question is whether as a result of the construction effected by the respondent there is a diminution of light and air and whether that diminution amounts to an actionable nuisance. In Paul v. Robson, (1914) 27 M. L. J. 117 : L. R. 41 I. A. 180 : i. L. R. 42 Cal. 46 (P. C. ). Lord Moulton summarised the opinion of the Lord Chancellor in Colls v. Home and Colonial Stores Ltd. , l. R. (1904) A. C. 179. in the following terms :"the opinion of the Lord Chancellor in that case is equally clear on the essential points that the easement acquired by ancient rights is not measured by the amount of light enjoyed during the period of prescription, and that there is no infringement unless that which is done amounts to a nuisance".

( 3 ) WHILE the trial Court granted a mandatory injunction the lower appellate Court took a different view. The Subordinate Judge based his conclusion on the evidence of D. W. 3, an Engineer examined for the first time in the lower appellate Court. He deposed that there was a manduva adjacent to the hall and the room with the result that there was sufficient air and light passing to the hall and the room. D. W. 1 deposed that if a line is drawn from the base of the window at 450 it cuts the coping of the existing compound wall. It is therefore clear from the finding that though there is bound to be a diminution of light and air it is not such as to cut off the entire light and cause nuisance to the plaintiff. Shri Suryaprakasam the learned advocate for the appellants contended that the decision of the lower appellate court is vitiated inasmuch as it did not take into account the personal inspection made by the District Munsif. Unfortunately the Inspection Note of the District Munsif is not available and I am not in a position to say whether the conclusion based on his personal inspection is correct.

( 4 ) RELIANCE was next placed upon Exhibit A-10 (a) in which the Health Officer opined that the ventilation would be affected. The mere fact that the ventilation is to some extent affected does not give rise to a cause of action as plaintiff has to prove that there is an actionable nuisance as defined in Paul v. Robson, (1914) 27 M. L. J. 117 : L. R. 41 I. A. 180 : I. L. R. 42 Cal. 46 (P. C. ). . The Health Officer was not examined and I am not in a position to know as to how far the ventilation of the building is affected.

( 5 ) I, therefore, accept the finding of the lower appellate Court and dismiss the second appeal. It is clear from the evidence of P. W. 1 that the construction of the building on EFGH is such as to cause danger to the other half of the wall belonging to the plaintiff.

( 6 ) I accept the finding of the learned Subordinate Judge and dismiss the memorandum of cross-objections. Each party will bear his own costs in the second appeal and in the memorandum of cross-objections. There will be no leave. Appeal and Cross-objection dismissed.