PHOOL CHAND Vs. NAGJIRAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit for mandatory injunction.

(2.) PLAINTIFFS claimed right in respect of a ventilator existing in the ground -floor of his house. The right is claimed against the adjoining owner of the land. It was alleged that the owner of the servient tenement raised a platform in his court -yard on 11 -10 -1949 and thereby closed his ventilator which had existed in a room on the ground floor of his house. He therefore prayed for a direction against the defendant requiring him to pull down his platform so as to clear the ventilator in question. The suit was filed on 10 -9 -1952. The plaintiff claimed the right to the ventilator on the ground that the ventilator had existed in the room in question since a considerable time that is for over 20 years and that he and his predecessors in interest had been enjoying light and air as of right. The right, according to him, had matured into a prescriptive right. The suit was resisted interalia on the ground that the claim to prescriptive easement was untenable. A specific issue namely issue No. 4 was famed upon this point. The trial Court dismissed the suit holding that the prescriptive easement claimed by the plaintiff did not exist. It was found that the plaintiff had enjoyed the right derived from the ventilator for about 20 years but this period of 20 years or more had not ended within two years next before the institution of the suit. The enjoyment had come to an end on 11 -10 -1949 and the suit was filed on 10 -9 -1952.

(3.) IN this case the propriety of interpretation put by the lower appellate Court upon the Clause immediately preceding Explanation in Section 15 of the Easement Act is challenged. This clause is as follows: -