M NAGESWARA RAO Vs. S RAMACHANDRA RAO

JUDGEMENT

(1.) Defendant is the appellant in this L. P. A. Which is preferred against the judgment of our learned brother Ramachandra Rao, J., in Second Appeal No. 368 of 1970, wherein leave was granted.

(2.) The facts giving rise to this litigation are stated below ; The respondent is the owner of house bearing No. 5/122 situated in the main road, 5th ward of Rajahmundry Municipality. The appellant defendant is the owner of the house bearing door No. 5/123 and it adjoins the plaintiffs house on the north. The terraced house of the defendant was constructed in about 1958. In 1959 when the defendant attempted to raise walls with a view to construct a first-floor on the said house, the plaintiff gave him a notice on 28-9-1959 raising an objection to the effect that the proposed construction would block the free flow of air and light through the only ventilators facing north to the house of the plaintiff, marked in red lines in the rough plan. According to the plaintiffs case the defendant stopped construction obstructs the free flow of light and air through the two ventilators the plaintiff stated that it would work hardship and irreparable damage to him. He therefore filed O.S. 457 of 1966 on the file of the Second Additional Munsif Magistrate Rajahmundry for an injunction restraining the defendant from raising any construction on his terraced building bearing No. 5/123, which interferes with the free passage of light and air through the windows (marked A and B in the rough sketch) of the plaint plan.

(3.) The defendant contested the suit stating that the plaintiff opened the two ventilators in the upstairs portion without his knowledge, that on protest he agreed to remove the same, that the plaintiff has no ease mentary right to have the two windows there in order to receive light and air as claimed by him. He also stated that by virtue of an agreement of the year 1930 the boundary wall between the house of plaintiff and the defendant is the joint wall, and that the defendant had aright to construct a building over the said wall. As per that agreement the wall, in which the plaintiff opened two windows, is the joint wall and as such he has no rights whatsoever in it and much less to claim easementary rights for light and sir through the said windows. He therefore pleaded that no injunction could be granted against him.