CHAPSIBHAI DHANJIBHAI DANAD Vs. PURUSHOTTAM

JUDGEMENT

(1.) By a deed of lease, dated May 5, 1906, the predecessor-in-title of the respondent let out to the appellant's father an open portion of land measuring 26 ft. x 225 ft. out of a larger plot. The lease was for constructing building and for a period of 30 years certain at the annual rate of Rs. 130/-. The lease contained, inter alia, the following :

(2.) The appellant filed the suit in 1958, out of which this appeal arises, urging that the said lease was a permanent lease, that buildings had been constructed on the leased land partly in 1906, and the rest in 1909 and 1922, that the said plot of land was subsequently demarcated into two survey numbers, 94 and 93, that a strip of land, 4 ft. in width and measuring 650 sq. ft. immediately to the west of survey No. 94 and forming part of survey No. 93 was covered by the said lease and was in his possession as part of the1eased land or was acquired by him as accession. Pending the suit the appellant amended the plaint asserting that the portion let out under the said deed of lease was 5850 sq, ft. in the aggregate, which included the said strip of land, and annexed a new plan showing details of the land which according to him was leased out under the said deed.

(3.) Out of the structures put up by the appellant's father, the central building, as shown in the plan produced by the appellant, has windows on the ground, first and second floors, all opening on the western side. The caves of that building protrude on that side by about 2 1/4 ft. with the result that the rain water falls over the said strip of land. According to the plaint, there is a drain partly in plot No. 94 and partly over the said strip of land which carries the entire waste water from the said building. According to the appellant, the said construction made by the respondent shut off light and air which he had been enjoying from the aforesaid windows. He had other complaints also to make and claimed amongst other things a declaration that the said strip of land was part of the leased land covered by the said deed, or in the alternative, that he had acquired it by way of accession, and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it. The respondent's answer to the suit briefly was that the appellant was not entitled to the said strip of land either as falling under the said lease or as accession. The respondent also denied that the appellant was entitled to any of the reliefs claimed by him, that the said lease was not a permanent lease but was for a period of 30 years in the first instance, but being a lease for constructing buildings thereon and being transferable, could at best be for the lifetime of the lessee, the appellant's father. He also averred that part of the land comprised in plot No. 93 used to be let out from time to time to persons including the appellant's father, who had executed a separate rent note,dated July 21, 1935, and who had under the said note been in possession thereof as a lessee from 1935 to 1941, and that he having been permitted as such a lessee the use of the said strip of land to enable him access to the said leased portion of survey No. 93, there was no question of his having acquired any easementary rights by prescription over the said strip of land.