D RAMANATHA GUPTA Vs. S RAZAACK

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment and decree dated 19- 2-1973 passed by the II Addl. Civil Judge, Bangalore in RA No. 35/70, on his file, allowing the appeal of the plaintiff on reversing the judgment and decree dated 31-3-1970 passed by the II Addl. First Munsiff, Bangalore in OS No. 489/64 on his file, dismissing the suit of the plaintiff for injunction.

(2.) It is the case of the plaintiff that he is the owner of the premises known as AH Buildings bearing No. 840, old Taluk Cutcherry Road, Nagarthpet and 112 Chowdeswari Temple Street, and defendant is the owner of the premises adjoining his premises bearing No. 113 and 114, Old Taluk Cutcherry Road. There are two windows of the size of 36" x 56" on the upstairs of the plaintiff's building through which the light and air passes to the pro. perty of the plaintiff. These windows and ventilator have been according to the plaintiff in existence for over 50 years and the plaintiff has been in enjoyment of the light and air coming through them and it is undisturbed during all this period. Thus the plaintiff has acquired easementary right to the light and air through the windows and ventilator having enjoyed the same in his own right undisturbed for a period of 50 years. The defendant some time ago demolished the structure in Nos. 113 and 114, Chowdeswary Temple Street, and is now putting up a two storied building. If the defendant were to put up a two storied building, the windows and ventilator would be completely shut up and there will be no passage through which the air and light passes to the property of the plaintiff. Hence, he averred that the defendant is not entitled to obstruct the air and light coming through the windows. Therefore, the plaintiff sought to restrain the defendant by means of an injunction from blocking the windows and ventilator. Hence, he instituted the suit for permanent injunction against the defendant with a prayer for issuance of an injunction permanently, prohibiting the defendant from shutting out the windows and ventilator situated in the plaintiff's property and for costs.

(3.) The suit was resisted by the defendant. He contended that the plaintiff did not acquire any easement by prescription for the alleged flow of light and air throuh the windows and ventilator. He specifically pleaded that the predecessors in title of the plaintiff executed an agreement on 5 9 1921 to the predecessors in title of the defendant undertaking not to obstruct the raising of the building by constructing the floors. Hence, he submitted that the suit for injunction was not maintainable.