HEIRS OF UTTAMBHAI HARKISANDAS Vs. THAKORDAS RANCHHODDAS BHUTWALA

JUDGEMENT

(1.) THIS appeal under section 100 of the Code of Civil Procedure is filed by the original plaintiffs who had filed Regular Civil Suit No. 476 of 1974 claiming easement right of light and air through Vada land of the respondent defendant and of discharging rainy water on the said vada land through three ft. iron sheet roof from the first floor of the plaintiffs. It is the case of the plaintiffs in the suit that the plaintiffs are the owners of the property bearing Ward No. 6 Nondh No.1120 at the corner of Bhut Street in the city of Surat and on the north side of the said property, open land called as Vada Land of the defendant bearing Ward No.6 Nondh No. 1270 is situated. Constructed property of the plaintiffs consists of ground floor and the first floor. It is the case of the plaintiffs that at the ground floor level, the plaintiffs have iron sheet wall wherein at the height of about 5 ft., there is iron grill (Jali) of about 10 ft.x 1.5 ft. facing vada land on the north side. It is also the case of the plaintiffs that at the first floor, construction is of two rooms and there is window of iron grill (Jali) of 3x4 ft. on north side. It is the further case of the plaintiffs that the plaintiffs have also placed iron sheet roof of 3 ft. covering kitchen and window on the first floor from which the rainy water drained down on 3 ft. vada land under the said roof. The plaintiffs are thus getting light and air through the windows from the north direction and also getting rainy water drained through the iron sheet roof on three ft. vada land of the defendant. The plaintiffs acquired such right of easement for the last 75 years and there is no physical change in the nature of two properties. The plaintiffs have further claimed in the suit that 3 ft. sheet of first floor is abutting on the vada land of the defendant and therefore, they are the owners of 10x3 ft. below the said iron sheet and the defendants are not entitled to remove such sheets and by way of alternative plea, the plaintiffs have claimed easement right to such land. It is the case of the plaintiffs that prior to filing of the suit, son of the defendant had quarreled and threatened for closing the grill (Jali) and therefore the suit is required to be filed.

(2.) THE suit of the plaintiffs was resisted by the defendant by filing written statement stating that the windows of the plaintiffs are not abutting in the north side on the vada land of the defendants but the kitchen which was on the side of vada land of the defendant. It is further stated that on the first floor also, the plaintiffs are not using the rear room and the plaintiffs have got no right to make window in the north rear room of the first floor. The plaintiffs have also no right to discharge rainy water in the vada land. Defendants have also stated that 3 ft. iron sheets roof of the plaintiffs is not falling in the vada land of the defendant. The plaintiffs have thus no easement right as claimed on the vada land of the defendant. It is stated that the plaintiffs have made changes in their property and they are getting light and air from the southern side of the property. The plaintiffs are not entitled to keep windows in the north side of rear room. It is stated that the light and air from the vada land are not necessary for the plaintiffs as the plaintiffs are getting sufficient air from the front portion of their property. It is lastly stated that the plaintiffs will not suffer any damage if the windows of the plaintiffs in the north side are closed and, therefore, the plaintiffs are not entitled to any relief in the suit.

(3.) ON the basis of the pleadings, learned trial Judge framed following issues at Exh53: