HARI CHAND Vs. HANS RAJ

JUDGEMENT

(1.) THIS is a regular second appeal filed by Hari Chand Plaintiff against the judgment, dated January 19, 1974, of the Additional District Judge, Sangrur, whereby he accepted the appeal filed by Hans Raj, Defendant -Respondent and set aside the decree, dated October 31, 1972, passed by the Subordinate Judge, 1st Class, Sangrur, and dismissed the suit of the Plaintiff.

(2.) THE facts of this case are that Hari Chand, Plaintiff -Appellant is owner of a house situated in Sangrur town and in the western wall of his house, three ventilators shown at points 'A', 'B', 'C in the plan attached to the plaint existed for the last about 50 years and he had been enjoying light and air through these ventilators peaceably, openly as of right and without interruption for more than 20 years and thus acquired a right of easement. The house of Hans Raj, Defendant is situated on the western side of his house and he threatened to cause obstruction and to close the ventilators with a view to disturb the right of easement of Hari Chand, Plaintiff. The Plaintiff, therefore, filed suit for a perpetual injunction to restrain the Defendant Hans Raj from causing obstruction to these -three ventilators to prevent the passage of light and air to his house. The suit was resisted by the Defendant. He denied the allegations made in the plaint. According to him, these ventilators were opened by the Plaintiff in that wall after the year 1954 and he was not entitled to any injunction. It was denied that the Plaintiff was the exclusive owner of the western wall of his house, in which the ventilators in dispute are located. On these pleadings of the parties,, the following issues were framed by the trial Court:

(3.) MR . S. P. Goyal, the learned Counsel for the Appellant, contended that the lower appellate Court affirmed the finding of the trial Court that the Plaintiff has acquired the right of easement to enjoy air and light through the three ventilators in dispute in the western wall and this is a binding of fact and cannot be disturbed in second appeal. He maintained that after deciding issue No. 1 in favour of the Plaintiff, the decision of the Additional District Judge that the Plaintiff is not entitled to injunction as there was sufficient light and air enjoyed by him from the doors and windows and ventilators on the other side of his house, was erroneous and incorrect. He attacked this decision on various grounds, which shall be discussed below.