YESHODA BAI Vs. G. YELOJI RAO

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. She filed a suit for a permanent injunction restraining the defendant from making any constructions in his land so as to infringe the plaintiff"s right to light and air on the northern side of the wall of the plaintiff's House bearing No. IV-C-446 and 452 lying east-west situate at Rikab Gunj, Hyderabad and also fora mandatory injunction to remove the constructions made by the defendant resulting in obstruction to light and air which the plaintiff is enjoying through the windows situate in the plaintiff"s northern wall. The plaintiff became the owner of the entire property having purchased the same one two occasions. One portion bearing No. 466 containing the eastern and mid windows was purchased under a sale deed Ex. A-7, dated 26-6-53 from one Habibul Rahman Khan. The other portion bearing Nos. 452, 453 and 454 and containing the third and western-most window was purchased under a sale deed Ex-A-9, dated 17-3-1961 from Ladli Bi and Vazir Bi who are the sisters of Rabia Bi, mother of Habibul Rehman Khan, the vendor under Ex. A-7. In between the two sales, the defendant purchases a vacant site lying immediate to the north of the plaintiff"s house under a sale certificate, Ex. B-17 dated 15-4-1958 in execution of a money decree obtained by him against the plaintiff"s vendor. The case of the plaintiff is that after the purchase by the defendant of the vacant site lying to the north of the plaintiff's wall, the defendant proposed to construct a building thereon, that there was an oral agreement between the plaintiff and the defendant under which the defendant agreed to set apart the small vacant space "seri' of 3 feet all along the plaintiff's northern wall so as not to interfere with the plaintiff"s northern wall so as not to interfere with the plaintiff"s prescriptive right to the light and air through her windows, that in spite of the agreement when the defendant was attempting to make constructions, the plaintiff not only complained to the Municipal authorities but had to file the present suit and obtain a temporary injunction against him not to close the windows by raising any constructions and that in spite of the temporary injunction the defendant high-handily closed the windows. Hence the plaintiff sought for a decree for a mandatory injunction and for a permanent injunction as stated above.

(2.) The defendant filed his write statement denying the plaintiff"s right to light and air as well as the truth of the agreement set up by the plaintiff. On the other hand, the defendant alleged that part of the wall belongs exclusively to him while the rest is the common wall of both the parties and that the plaintiff"s husband agreed with him that the windows may be closed and that the defendant might rest his constructions over the northern side wall of the plaintiff"s house. The defendant also denied that he made any constructions which are unauthorised or contrary to the orders of Court. The trial Court, on a consideration of the oral and documentary evidence in the case, recorded the following findings:

(3.) On the basis of these findings, the trial Court gave a decree for removal of such of the constructions erected by the defendant contrary to the sanctioned plan due to which the plaintiff"s windows were blocked and also for a perpetual injunction restraining the defendant from interfering with the plaintiff"s right to receive light and air through the windows in the northern wall.