LAXMINARAYANACHAR Vs. DODDABASAPPA

JUDGEMENT

(1.) This is a second appeal from a judgment and decree dated 30th October 1965 made in R.A.No.390 of 1964 by which the learned Civil Judege, Bangalore City, has reversed the judgment and decree dated 24-2-1964 made in O.S. No. 197 of 1957 on the file of the Additional First Munsiff, Bangalore.

(2.) The facts relevant for the purpose of the disposal of this appeal, may briefly be stated. The plaintiff is the owner of the house bearing municipal number 61 and the defendant is the owner of the adjoining house bearing municipal number 60 which is situated to the east and north of the plaintiff's house. This house of the defendant was formerly a mud-roofed structure which was 7 feet high on the eastern side and 8 feet on the northern side. There are two ventilators which are marked as 1 and 2 in the plaint sketch Ext. P-12. Above the said two ventilators, there is a window at a height of 3 feet. There is also another window in the northern wall of the first floor of the plaintiff's house. The two ventilators are opening to the bathroom and kitchen of the plaintiff's house. Through these ventilators and windows, the plaintiff states that he has been enjoying light and air for the last thirty years. He further states that in 1956, the house of the defendant collapsed and the defendant started new construction bit by bit and raised the first floor wall up to a height of 8-1/2 feet and by this act, he has completely cut off the air and light through the said ventilators, thus causing damage to the utility of the plaintiff's building. Hence the suit for a declaration that he is entitled to the free flow of air and Light through the ventilators 1 and 2 and also through the windows above referred to. There is also a prayer for a permanent injunction and also for a mandatory injunction to demolish that portion which obstructs his right to light and air.

(3.) The defence is one of denial of the plaintiffs right. The defendant further states that the wall is a common wall in between the portions of the plaintiff's and defendant's houses and that the defendant has got the right to make use of that wall.