KANWARMAL Vs. MAHADEO PRASAD

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of a suit for mandatory injunction directing the defendants to remove the wall raised by them contiguous to the western gate of a go-down belonging to the plaintiff-respondent and also for issue of a perpetual injunction restraining the defendants from obstructing the passage of light and air through the said gate. It has also been prayed that the defendants may further be restrained from obstructing the flow of water from the roof of the godown through the spouts falling on the defendant' land.

(2.) RAJ Kanwar and Suraj Singh were admittedly the original owners of both the godown belonging to the plaintiff, and the house belonging to the defendants. They sold the godown and one other house situated towards the north of the godown to one Premsukh by sale deed (Ex. 9) dated 5-1-1958. Prenrukh in his turn sold the godown to one Harswaroop by a sale deed (Ex. 8) dated 28-6 1955. Harswaroop sold it to Nathulal vide sale deed (Ex. 2) dated 8 9 1964 and lastly Nathulal gifted the godown in question to the plaintiff Mahadeo Prasad by a gift deed (Ex. 1) dated 14-12 1956. This is how the plaintiff Mahadeo Prasad came to be the owner of the godown.

(3.) IN my opinion the position of law as submitted by the learned counsel for the appellants does not admit of any doubt, and the learned counsel for the respondent also did not challenge it, and in my opinion, rightly so That the sole question to be decided in case of quasi-easement is whether there has been any disturbance in the enjoyment of the subject matter in dispute as it was enjoyed when the transfer took effect. Applying the said principle to the present case the moot point for decision would be as to the mode of enjoyment of the godown in question at the time when Raj Kanwar and Suraj Singh (the original owner of the godown and the house belonging to the defendants) sold the godown in question to Prem Sukh on 6-1-1949 by Ex. 9 ). This would mean that the plaintiff claiming such an easement has to show that the easement was not only apparent and continuous but was necessary for enjoying the subject in dispute as it was enjoyed when the transfer of the subject matter took effect. Looked at from this stand point, I cannot help pointing out that issue No 3 pertaining to this matter is not only much too wide but highly vague and does not bring out the point of controversy between the parties. At one stage, learned counsel for the respondent endeavoured to show that inspite of the defective frame of the issue the parties had led evidence on the relevant points for establishing a quasi-easement. His submission was that the evidence read as a whole indicated, that at the time of the sale of the godown in question by Raj Kanwar and Suraj Singh the western gate of the godown was kept open for light and air and that there has been substantial diminution of light and air in the godown on account of construction of the wall by the defendants. But soon-after he realised that the evidence of the witnesses was not recorded in the manner in which it should have been, with the result, that there has been left room for argument from the side of the appellants that the ingredients of a quasi easement have not been fully established. He, therefore, agreed that proper issues may be framed and the case he remanded to the trial court. I may here point out that the criticism advanced by the learned counsel for the appellants in respect of the evidence produced by the plaintiff applies more or less in the same measure to the evidence produced by the defendants also.