JAMNA DAS Vs. GULRAJ

JUDGEMENT

(1.) THIS is plaintiff's second appeal arising out of a suit filed by Jamna Das against Gulraj in the Court of the Munsif, East Jaipur on 15-7-1947, for a perpetual injunction restraining the defendant from obstructing light and air of a window of the plaintiff's house. The houses of both the parties are adjoining to each other, in the city of Jaipur and there is a kitchen on the top floor of the plaintiff's house, in which there is a window over-looking the house of the defendant, which, it is said, has been closed by the defendant by erecting a wall by the side of the wall of the plaintiff's house. The plaintiff claimed that he had acquired a right of easement by prescription as he has been receiving light and air through that window for more than 20 years. The smoke of the plaintiff's kitchen was also let out through the same window. The defendant admitted that the window had been in existence since the year 1872, but he pleaded that it was constructed with the consent of the defendant's predecessor on the condition that it would be closed whenever the defendant required the other party to do so. The defendant, in pursuance of this condition had closed the window by erecting a wall. It was further alleged that the closing of the window did not materially diminish the quantity of air and light in the kitchen of the plaintiff and there was, therefore, no cause of action for the plaintiff to sue the defendant. The trial Court decreed the suit of the plaintiff. The findings of the First Court were that, the document produced by the defendant purporting to be an agreement between the plaintiff's predecessor in interest regarding construction of the disputed window on the specific condition that it would be closed, whenever the defendant desired to close it, was not proved and the obstruction created by the defendant was such as materially interfered with the right of the plaintiff, in diminishing the quantity of light and air of the plaintiff's kitchen. On an appeal, the District Judge, reversed the finding of the lower Court as regards the execution of the agreement produced by the defendant relating to the window and it was held that the document was duly executed by the predecessor in interest of the plaintiff, but it was not relied upon on account of the suspicion that it may have been antedated by the executant Vijai Narain, who was said to be not on good terms with the plaintiff. The District Judge inspected the site and on the basis of his inspection of the spot, held that there was sufficient light and air in the kitchen of the plaintiff, even after the closing down of the disputed window. He, therefore, dismissed the suit on the ground that the closing of the window by the defendant did not interfere with the access of light and air to the kitchen of the plaintiff, materially. The plaintiff has come in second appeal against the judgment of the District Judge and it has been contended that the lower appellate Court was wrong in making use of the observations made by the Court by spot inspection in place of the evidence. According to the appellant, the closing of the disputed window, materially diminished the access of light and air to the kitchen of the plaintiff.

(2.) IT may be observed that the existence of the disputed window for more than 20 years is admitted by both the sides, but it is disputed that the closing of the window does not materially reduce the quantity of light and air so as to give a right to the plaintiff to claim an injunction or damages against the defendant. IT is further contended that the disputed window was constructed with the consent of the defendant on the condition that it it would be closed whenever it was so desired by the defendant.