SURAJ PRASAD KESHARI Vs. PYARE MOHAN

JUDGEMENT

(1.) This appeal under Section 96 of C.P.C. has been filed against the judgment and decree dated 24.2.2000 passed by Additional Civil Judge (S.D.), Bhadohi at Gyanpur (District Sant Ravidas Nagar) in Civil Suit No.131 of 1994, decreeing the suit with costs and passing a decree of declaration to the effect that plaintiff has an easmentary right over the disputed Gali in suit and for prohibitory permanent injunction for restraining the defendant from damaging or demolishing the Nali shown by letters in plaint map or obstructing the flow of water through the Nali as well as from closing the ventilators and windows and drain pipes or obstructing the use of air and light to the plaintiff's house through above windows and ventilators.

(2.) The brief facts relating to the appeal are that plaintiff Pyare Mohan filed Civil Suit No.131 of 1994 on 17.10.1994 with the allegation that the house shown by letters in plaint map originaly belonged to Beni Ram and was inherited by Jwala Prasad, who executed a registered will on 13.11.1980 in favour of plaintiff and his brother; that the above house is triple storied house and several ventilators and windows on each story opens towards East in 8 feet wide lane (Gali); that in the western side of the Gali there is 2 feet 3 inch wide Pakki Nali in which the water of the house of plaintiff flows through Nabdan (drain) of his house as well as through pipes from roofs and floors of triple storied house; that the plaintiff and his predecessors have always been continuously peacefully and without any interruption, flowing water through the Nali and pipes and have been taking light and air through the windows and ventilators in eastern wall of their house, for more than 20 years, as of right, and have acquired prescriptive right of easment to flow the water through Nali and pipes and take the light and air through windows and ventilators; that on 14.10.1994, the defendant threatened of demolition of the Nali and raising of a wall on western side of Gali after dismelting the pipes and of closing the ventilators and windows of the house of plaintiff, so as to obstruct and interfere in exercise of his easmentary rights to flow the water and take light and air.

(3.) The defendant filed written statement denying the allegations of plaint and contended that no water of the house of plaintiff did ever flow from the Nali in question and that he has no right to flow the water in the Nali in dispute or to take light and air through the windows and ventilators towards Gali; that the Gali in question is in exclusive ownership and possession of the defendant and neither any Parnala/pipe nor any Nabdan (drain) nor any window or ventilator of the house of plaintiff opens or ever existed towards the Gali in question nor the plaintiff has any right to flow the water in, and take light and air from, the Gali in question; that across the Gali in question there is house of Satendra Kumar, which has been purchased by him from Smt. Fatima Bibi, Asgar Bibi etc. and in the sale deed of the house of Satendra Kumar, western boundary has been mentioned as 'the Gali of defendant'; that the dirty water of the house of plaintiff flows towards North in municipal drain; that the suit is legally not maintainable and is liable to be dismissed with costs.