LAXMIBAI Vs. KASHIBAI

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment and decree dated 4-1 1974 passed by the II Addl. Civil Judge, Belgaum in RA No. 195/71 on his file, dismissing the appeal on confirming the judgment and decree dated 1-4-1971 passed by the II Addl. Munsiff, Belgaum in OS No. 96/69 on his file decreeing the suit of the plaintiff as prayed for.

(2.) The plaintiff filed a suit for permanent injunction restraining the defendant from causing obstruction to the flow and access of air and light from the open site in CTS No. 1779/A- B situated at Kelkar Bagh, Belgaum into six windows in the western wall of plaintiff's house, CTS No. 1767/A situated at Kirloskar Road, Belgaum. The defendant was attempting to construct a building on the said open site in CTS No. 1779/A B, so as to cause obstruction to the flow and access of air and light to the bouse of the plaintiff. The plaintiff is the owner of the house CTS No. 1767/A at Kirloskar Road, Belgaum and she is residing in it. There are two windows in the western side wall in the ground floor and 4 windows in the western wall of the first floor of the plaintiff's house. These windows are in existence ever since the house was constructed. The defetedant purchased CTS No. 1779/A-B from one Yallubai Dalai. The plaintiff has purchased her house CTS No. 1767/A on 15-9 1932 from the Original owner. According to the plaintiff herself and her predecessors in title enjoyed the free air and light passing through the window on the western wall of the plaintiff's house from the open space of the house bearing CTS No. 1779/A B peacefully, openly and as of right for more than 20 years. So according to the plaintiff, she had acquired a prescriptive right of easement to enjoy free air and light passing through the said windows of her house. The plaintiff recently came to know that the defendant obtained permission from the City Municipal Council, Belgaum to construct a four storeyed building in the open site in CTS No. 1779/A-B. If defendant constructs her building on the said site as per the approved plan, the flow and access of light and air passing as at present through the said open space backyard of the CTS No, 1779/A-B into the windows in the western wall of the plaintiff's house would be completely obstructed and the said house of the plaintiff would become uncomfortable and would be rendered unfit and useless for occupation and for residence and the value of the house would be considerably diminished and plaintiff would be put to irreparable loss. Hence, the plaintiff instituted a suit for injunction against the defendant to restrain the defendant from putting up such building, after issuing notice to defendant on 3 1-1969, since the defendant refused to heed to the notice issued to her. Defendant according to the plaintiff was proceeding with the work of construction. Hence, there was urgency for injunction.

(3.) The defendant resisted the suit by filing her written statement. She contended that the plaintiff did not acquire easemen- tary right for flow and access of the air and light through the windows situate in the western wall of her house. There were six windows in the western wall of the plaintiff's house. But, the defendant denied that these windows were in existence for more than 20 years. The defendant denied that the plaintiff acquired perscriptive right of easemeat for air and light through the windows. The defendant had obtained permission of the Municipality to construct a four storeyed building. She denied that the said construction would obstruct light and air to the house of the plaintiff so as to render the plaintiff's house unfit and useless for residence. She had a right to construct her own building in her own site. Besides, defendant proposed to leave open space of about 5' between the plaintiff's house and the proposed new building. Hence, she prayed for dismissal of the suit.