CHITA NAND Vs. SMT. PUJARI BAI AND ANOTHER

JUDGEMENT

(1.) The following substantial question of law arises for consideration in this second appeal:-

(2.) The second appeal is by the plaintiff, who sued for injunction restraining the defendant from raising any construction that could cause obstruction to free light and air through two windows at the first floor and deprived the plaintiff's right of his prescriptive easementary right to obtain the accustomed quantum of air and light. The trial Court dismissed the plaintiff's suit holding that the plaintiff's construction at the first floor itself had been raised only in the year 1976 and there had been also no proof that he had an unobstructed peaceful flow of air and light. It set out another principle of law as well that there must be a gross hardship caused and the same must be established but finding that all these parameters for the relief of injunction not obtaining in favour of the plaintiff, he proceeded to dismiss the suit.

(3.) In appeal to the lower appellate Court, the appellate Court reversed the finding both as regards the prescriptive right of easement and the peaceful enjoyment thereon. However dealing with Sections 28, 33 and 35 of the Indian Easements Act, the lower appellate Court found that apart from the bare averment of serious hardship and inconvenience, nothing had been proved to establish that the closure of 2 windows could cause a serious impairment to the enjoyment at the first floor. The injunction which was sought was therefore declined and the appeal was also dismissed.