PATEL SHIVABHAI CHHAGANBHAI Vs. PATEL HARIBHAI GHELABHAI

JUDGEMENT

(1.) SHRI Arun H. Mehta, learned counsel for the appellant, Shri Saurav Patel, learned counsel for the respondent. Parties are heard. The appeal has been admitted on the following substantial questions of law: -

(2.) THE short facts necessary for disposal of the present appeal are that the plaintiff is owning a house in Patidar Maholla of village Dethli, bearing Gram Panchayat No. 2/57. The house was open on the north. The said house on north -south was 63 feet and east -west 12 feet. On the north of the said house, there is a door and subsequent to that, there is open area and there is door of small passage, thereafter, there lies main road. On the south, there is hind portion of the plaintiff's house. Rain water falls in the open land behind the said portion. Adjoining the east wall of the plaintiff's house, house of Harjivan is situated. On the west, there is adjoining wall of Patel Nathabhai Ishwardas. There are two slopes of the roof on the house as well as on the small door. According to the plaintiff, the defendant who was desirous of making construction was making construction in a manner which was to close windows opening towards the side of the defendant. He submits that if the defendant constructs his house, then, his right of light and air would be adversely affected and his right of discharging rain water would also be adversely affected.

(3.) THE defendant appeared before the court and submitted that the plaintiff had no easementary right and the suit could not be decreed, however, the learned trial court held that the plaintiff had easementary right of light and air from the two apertures which were on the back side of his house. The trial court also held that the plaintiff had a right to discharge rain water upon the defendant's property. The trial court also declared that the plaintiff has a right to privacy and it restrained the defendant from constructing anything within 5 feet of two apertures and also restrained the defendant from placing any aperture opposite to the plaintiff's apertures. Being aggrieved by the said judgment and decree, the defendant took up the matter in appeal. The appellate court, after hearing the parties held that the plaintiff has a right to discharge the rain water, but he had no easementary right of light and air, because, such was not the question raised nor any issue to that effect was framed. The court also held that the defendant could not be restrained from raising his construction within five feet. It accordingly maintained the decree in relation to the discharge of the rain water, but set aside other part of the decree.