BAI RATANGAVRI Vs. MANILAL MAHIPATRAM MEHTA

JUDGEMENT

(1.) THIS is a plaintiffs' appeal in a suit for declaration that the upper part of the wall of their house containing two apertures was of their exclusive ownership and for injunction restraining the defendant from blocking them up. The houses of the parties are situated adjacent to each other in Ahmedabad. The plaintiffs' father purchased their house in the year 1889, the sale-deed of which contains a recital that the western wall of that house (the wall in dispute) was a joint wall only up to the roof of the house of Harilal, who was the defendant's predecessor-in-title, and above the height of the defendant's house it belonged exclusively to the plaintiffs' house. The defendant purchased his house in 1908, and it is recited in his sale-deed that the eastern wall, which is the same as the western wall of the plaintiffs' house, was joint up to the roof of the house with the plaintiffs' house, but it is silent about the ownership of the upper part of the wall. It is material to note that the two apertures in the upper part of the wall in dispute were in existence before 1908, but there is no evidence of the particular time when they were put up. It is also material to note that there is no evidence that the height of the wall in dispute was originally only to the roof of the defendant's house and that it was subsequently raised by the plaintiffs or their predecessors. We have the fact that in 1889 when the plaintiffs' father purchased this house, the whole of the western wall was in existence as it is to-day.

(2.) THE defendant intended to raise the height of his house and the plaintiffs apprehended that they would be deprived of the light and air which they had enjoyed through the two apertures in the upper part of their wall on account of the defendant raising his house. THEy, therefore, brought the: present suit for the declaration and injunction as stated above. THE defendant's case was that the whole wall to the west of the plaintiff's house was a joint wall, and that the plaintiffs, therefore, could not acquire any easement of light and air through any apertures in that joint wall.

(3.) I think, therefore, that the decree of the lower appellate Court should be reversed and the appeal allowed with costs throughout. The plaintiffs are entitled to the declaration and injunction as prayed for in respect of the easement of light and air. .