KANAKMAL Vs. MAHADEV PRASAD

JUDGEMENT

(1.) THIS is a defendant's 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 godown 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 defendants' land.

(2.) RAJ Kanwar and Suraj Singh were admittedly the original owners of both the godown belonging to the plaintiffs and the house belonging 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 5.1.1949. Premsukh in his turn sold the godown to one Harswaroop by a sale deed (Ex 8) dated 26.7 1955. Har Swaroop 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 14.12,1965. This is how the plaintiff Mahadeo Prasad came to be the owner of the godown.

(3.) THE plaintiff filed the present suit in the Court of Munsiff, Ajmer City (West), Ajmer on 7.1.1966 for the reliefs mentioned in the earlier part of this judgment alleging that he had been receiving light and air through the western gate of the godown opening in the plaintiff's house for over 20 years, but the defendants had obstructed the same by constructing a wall contiguous to the gate so that the passage of light and air was completely blocked resulting in substantial diminution of light and air coming into the godown. The plaintiff further pleaded that he and his predecessors -in -title had been discharging rain water from the roof of the godown through the three spouts for more than 20 years over the defendants' chowk but the defendants were threatening to close down the aforesaid spouts also and thereby obstruct the flow of water through the said spouts. It was also pleaded that the land on which the wall had been constructed by the defendants belonged to the plaintiff, and the wall so constructed by the defendants had covered half the stone brackets (Todas) of the plaintiff fixed in his own wall. The plaintiff filed an amended plaint on 27.1.1966 by which he was permitted to rest his case for the reliefs claimed by him not only on prescriptive easement but also on easements of necessity and quasi -easements both with respect to light and air alleged to be enjoyed through the gate as well as the right to discharge water from the roof of the godown through the three spouts on the defendants' land.