SUKHADEV RATHI Vs. JUPUDI RUKMINAMMA

JUDGEMENT

(1.) This appeal is directed against the decree and Judgment in A.S. No. 44 of 1964 on the file of the Principal Subordinate Judge, Vijayawada, by which the decision in O.S. No. 126 of 1962 on the file of the District Munsif of the same place was reversed, defendants in the suit arc the appellants.

(2.) The respondent, Rukminamma, filed O.S. No. 126 of 1962 in the court of the District Munsif, Vijayawada tor a perpetual injunction restraining the appellants (Defendants) from raising certain structures in their site described by the letters E F G H in the Plaint Plan alleging that the said structures, if allowed to be constructed would have the effect of invading her easement right of receiving light and air through the window 'W' of one of the four rooms in her house shown by the letter A B C D in the same plan. The defendants resisted the suit contending inter alia that the plaintiff is not entitled to the right of easement claimed by her as the window in question was always kept closed and that she is in any view, not entitled to sue for an injunction as the structures put up by them do not in any way hinder the passage of light and air through the window in question, subsequent to the institution of the suit, the Plaint was amended so as to include a prayer for a mandatory injunction alleging that the defendants put up certain structures in their site in defiance of the temporary injunction granted against them soon after the suit was filed.

(3.) The trial court non-suited the plaintiffs having accepted the stand taken by the defendants that the plaintiff never enjoyed the easement right in question as the window 'W' of the Plaint Plan was always kept closed on account of the face that there used to be a boiler in the defendants' site and adjacent to the window in the plaintiff's northern wall. On appeal, however, the learned subordinate Judge held that the plaintiff acquired prescriptive right for the free passage of light and air through the window 'W' having enjoyed the same for over the statutory period, that the structures put up by the defendants in their site had the effect of obstructing the free passage of air and light to her house and that she is, therefore, entitled to the relief of injunction sought for. He accordingly allowed the appellant decreed the suit by granting a mandatory injunction directing the defendants to demolish the offending structures. Aggrieved by this decision, the defendants have preferred this second appeal.