MOHANLAL Vs. GORDHANLAL

JUDGEMENT

(1.) THIS is a plaintiff's second appeal from the judgment and decree by the Senior Civil Judge, Sikar dated 31.8.1962 by which his suit for mandatory injunction for demolition of the wall raised in front of the two aperture in the north -eastern room in the ground floor of his house situated in the town of Sikar, was dismissed.

(2.) THE two apertures in dispute measure 9' X 12' each. It was alleged in the plaint that these aperture have been in existence for more than 20 years, and the plaintiff has been receiving light and air through them According to the plaintiff these apertures were the only source of light and air in the room, and the defendant by raising a wall contiguous to the plaintiff's house and close to the apertures in question has rendered the room in question unfit for reasonably comfortable living It was alleged that the Municipal Board, Sikar while allowing permission for construclion to the defendant had specifically directed the defendant to leave space to the extent of 3' by its order dated 2.9.1953, but the defendant in contravention of the order of the Municipal Board, raised the wall adjacent to the wall of the plaintiff's house as a result of which the two apertures shown as 'K' and 'L' in the site -plan Ex. P 2 have been completely blocked. It was also alleged that there were a few more apertures and water spouts in he wall which had been existing for more than 20 years, and it was apprehended that the same may be closed down. The plaintiff, therefore prayed that a mandatory injunction be issued for demolition of the wall and a perpatual injunction be also issued against the defendant restraining him from obstructing the air and light coming through these apertures in future The defendant denied the right of easement for light and air through the apertures in question: After recording the evidence produced by the parties the trial court by its judgment and decree dated 5 -5 -1954 decreed the plaintiff's suit. Dis -satisfied with the judgment of the trial Court, the defendant filed appeal which as dismissed by the learned Senior Civil Judge, Sikar on 15.7.1955. The defendant came in second appeal to this Court, and Bhargava J., found that the lower appellate court had not decided the quest on of substantial diminution of light and air and therefore by his judgment dated 20.7.1961 he accepted the appeal, and sent the case back to the first appellate court to decide it afresh. In the order of remand it was observed by the learned Judge that on a perusal of the site -plan Ex. P.2 it had come to his notice that a mark similar to 'K' and 'L' has been shown in the northern wall of the room. Consequently he directed the lower court also to inspect the site and give opportunity to the parties to point out if there was any other aperture or window in that room in as much as the existence of such an aperture would vitally affect the determination of the question regarding diminution of light and air.

(3.) IT has been argued by the learned counsel for the appellant that the finding of the learned Senior Civil Judge that inspite of the closure of the two apertures 'K' and 'L' in question the plaintiff got sufficient air and light through the aperture marked 'C; in the northern wall of the room and the door is erroneous in law He has argued that the aperture 'C had been opened with the permission of Radha Kishan, only on September 1953, and the plaintiff had not acquired any prescriptive right to receive light and air through this aperture. It is contended that this aperture had been opened only as a temporary arrangement as the apertures 'K' and 'L' had been closed by the defendant. The light and air received through this aperture, according to the learned counsel should not have been taken into consideration by the learned Senior Civil Judge He has also submitted that the learned Senior Civil Judge was in error in taking into consideration the existence of the door in the room for the purpose of deciding the question of diminution in light and air. In support of his contention the learned counsel has relied upon Rajani Kanta v. Nirmal Chandra AIR 1945 Cal. 438, Ebrahimji Gulamali v. Badrudm AIR 1951 Saurashtra 46 and Mst. Jadooie Kaharin v. Kisum Basi Kuer AIR 1925 Pat. 106.