BHULWATI DEVI Vs. MUNNA LAL

JUDGEMENT

(1.) This second appeal and the cross-objection filed therein are being disposed of by a common judgment as they arise out of the same suit. The suit was decreed by the trial court ill its entirety. On appeal, the decree of the trial court was modified. Whereas the decree of the trial court for removal of constructions complained of by the plaintiff-respondent was affirmed, the decree of the trial court in respect of the parnala was set aside and the plaintiff-respondent's suit in that regard was dismissed. Aggrieved by the decree passed by the lower appellate court, the defendants have filed this second appeal. The plaintiff-respondent on the other hand, has filed cross-objection against the dismissal of their claim in respect of parnala.

(2.) The plaintiff-respondents came to the court with the allegations that they have five ventilators on the ground floor of their house in their western wall. Through these ventilators, the plaintiffs were enjoying uninterrupted passage of light and air into their residence for more than 50 years. The defendants are constructing their house towards the west and if they were permitted to complete the constructions as planned by them free passage of the light and air into the house of the plaintiff-respondent shall have been completely blocked. The plaintiff has also prescribed an easement-ary right of flow of water towards the house of the defendants. However, the house which the defendants are constructing, if allowed to be completed is bound to interfere with the right of the plaintiffs to flow water from their house. In paragraph 7 of the plaint, it was alleged that if the defendants were allowed to complete their constructions, they would deprive the plaintiffs of enjoyment of the air and light and there would be consequent, darkness in the room of the plaintiff's house.

(3.) The defence of the defendant No. 1 was that there did not exist any ventilators on the ground floors or in the upper storey in the western wall of the plaintiff's house. It was asserted that the defendant No. 1 had, constructed the wall at the site of their old Kuchcha wall which was always just adjacent to the western wall of the plaintiff's. The said defendants also denied the existence of any rights claimed by the plaintiffs to flow water from their house towards the defendants' house. A plea of estoppel was also raised in the written statement.