DEVINDER KUMAR Vs. CHATRO DEVI

JUDGEMENT

(1.) THIS regular second appeal filed by Davinder Kumar Jain plaintiff is directed against the judgment of learned Additional Senior Subordinate Judge, Delhi, affirming on appeal the decision of the trial Court. 2. The brief facts of the case are that Davinder Kumar Jain appellant and Shrimati Chatro Devi respondent own adjoining houses in Mandirwali Lane, Subzimandi, Delhi. The dispute between them relates to the access of light and air through the two windows in the appellant's house, one on the second storey and the other oh the third storey. The present suit was filed by the appellant on the allegation that he had a right of casement for access of light and air through the two windows against the defendant and had been enjoying the use of light and air peaceably and without interruption as of right in the past. So far as the right of easement in the window on the third storey was concerned it was based on the claim that the appellant had been getting light and air through that window for a period of 25 years before the suit and the same had also been granted in favour of the predecessor of the appellant by the predecessor of the respondent by means of a compromise decree dated 5th January 1937. As regards the right of easement through the window on the second storey, the appellant claimed that he had got the same as a result of the compromise decree. The appellant also added that he had been having access of light and air through that window for a period of more than 181/2 years. The present suit was filed on 16th June 1955 on the ground that Shrimati Chatro Devi respondent had started construction on the second storey of her house and was causing material obstruction to the ingress of light and air through the window on the second storey and was also threatening to raise a construction in front of the window on the third storey. Mandatory injunction was sought enjoining the respondent to remove the four-walls in front of the window on the second storey. Prohibitory injunction was further sought restraining the respondent from constructing any room or building in front of the two windows so as not to interfere with the appellant's access of light and air through those windows. 3. The suit was resisted by the respondent who denied the allegations of the appellant. It was averred that the room in front of the window on the second storey had already been completed. Plea was also taken that the act of the respondent had not interfered in any way with the appellant's comfortable residence in his house. 4. Material issues for the purpose of the present appeal are issues Nos. 2 to 5, which arc as under: