SANTHANNAGARI RAMAYYA Vs. NARASIMHAPURAM NARAYANA CHETTY

JUDGEMENT

(1.) This second Appeal arises out of a suit for a declaration of the plaintiffs easementary right for free access of light and air through the ventilators shown as V-l and V-2 in the southern wall of the plaintiffs house shown as FGA in the plaint plan and for a permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs rights by putting up any construction in their site and for a mandatory injunction for the removal of the Varanaku put up by the defendants adjacent to the plaintiffs southern wall obstructing the access of the usual light and air through these ventilators. The plaintiff claimed that he acquired a right to receive light and air through the two ventilators by such enjoyment for over the prescribed period In fact the plaintiff- purchased the suit house in the year 1915 under Ex A-l dated 15-2-1915. Even by that time there were these two ventilators.

(2.) The defendants plea was that there was an agreement between their predecessors-in-title and the plaintiffs predecessors-in-title initially and again between the plaintiff and the predecessor-in-title of the defendants when the plaintiff purchased the house to the effect that the plaintiff would close these ventilators as and when the defendants wanted them to be closed This was the main plea in the written statement and is reflected by the Court issue framed by the trial Court which is as follows; "4 Whether the agreement and the undertaking pleaded by the defendants that ventilator V(1) and V(2) are to be closed up or removed when the defendant demanded so is true, valid and binding?

(3.) The trial Court on a consideration of the evidence held that the agreement is true. It also held that even if thesp two ventilators are closed, the plaintiff would be getting sufficient light and air if the door-way and the window in the wall EF and also a doorway in the northern wall EH in the plaint plan are opened, as well as the ventilator which opens into the hall on the west. As a result, the District Munsif dismissed the suit. But on appeal by the plaintiff the learned Subordinate Judge. Chittoor after a consideration of the evidence found that the defendants had not proved any agreement or undertaking pleaded by them, that is, the main defence raised by the defendants to non-suit the plaintiff and which is called by issue No. 4 is found against by the learned Subordinate Judge on an appreciation of the evidence. The learned Subordinate Judge further found that for over 45 years the plaintiff has been receiving light and air through the two ventilators, V-1 and V-2. On the question whether the plaintiff would have sufficient light and air even if the ventilators were closed, the learned Subordinate Judge held in paragraph 8 of his judgment that the plaintiff is entitled to insist upon his enjoyment of so much light and air as was then available to him. In the result the plaintiffs suit was decreed by the learned Subordinate Judge. Hence this second appeal is filed by the defendants