SOHAN LAL Vs. MANOHAR BAI

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of an action for enforcement of certain rights of easement in respect of a 'medi' fan apartment in the upper storey)and directed against the appellate judgment and decree of the learned District judge. Bhilwara dated 27-1-1966.

(2.) THE parties were neighbours and were living at Bhilwara. The plaintiffs have their shop marked A in the site plan attached to the plaint. On the roof of this shop the plaintiffs have their 'medi' marked B. On the back side of the shop is the 'gwadi' or house of the defendants. It is plaintiffs' case that their ingress to the 'medi' lies through the defendants' 'gwadi' from over the staircase marked E and the open space on the roof marked DH. The wav is shown as MN in the map. The plaintiffs' case further was that there was a door on the western side of the 'medi' which abutted the open space on the roof DH. The plaintiffs proceeded to say that this door existed for the last 60 years and they were getting light and air to the 'medi' through this opening also. Then the plaintiffs claimed that there was a spout in the 'medi' from under the door and there were two spouts on the roof of the 'medi' and the plaintiffs had acquired easement of discharging water through these three spouts. These spouts, according to the plaintiffs existed for almost 45 years or so. The plaintiffs' grievance was that some 2 3/4 months before the filing of the suit the defendants had dismantled the staircase marked E and were raising construction upon the open roof; thereby the defendants had interfered with the plaintiffs" light of passage and were threatening to frustrate their right to have light and sir through the door by raising construction as to close the same. Regarding the spouts they averred that they were also closed. The plaintiffs, therefore, prayed for an injunction restraining the defendants from raising any construction just near the 'medi' so as to close the door facing west and for a mandatory injunction commanding the defendants to continue the passage for the 'medi' as it was through the staircase and the open space on the roof. An injunction for restraining the defendants from closing the spouts was also prayed for.

(3.) THE defendants denied the plaintiffs' claim in toto. They denied that there was any door in the plaintiffs' 'medi' as alleged or that there was any passage or that they had any right of passage to the 'medi' through the defendants' house and the staircase. As regards the two spouts the defendants averred that formerly the 'medi' was 'kacha' and there were no spouts at all but when the 'medi' was made 'pucka' some 16 to 17 years back during the absence of the defendants they had constructed the two spouts on the roof. They further stated that while reconstructing the 'medi' the plaintiffs had opened a window at the height of 5 feet from the roof and the third spout was constructed at that very time. The defendants' case further was that for the last 30 years the plaintiffs had no ingress to the 'medi' through the defendants' house. Then it was averred regarding light and air that the plaintiffs were setting sufficient light and air through the eastern door of the 'medi'.