NARAYANDAS (SINCE DECEASED) THROUGH HIS LRS. Vs. GANGODEI

JUDGEMENT

(1.) THIS second appeal under Sec. 100 C.P.C. has been filed against the judgment and decree dt. 08.04.2011 passed by the learned Additional District Judge No. 1, Bharatpur in a regular civil appeal No. 22/1998, upholding the judgment and decree dt. 03.10.1997 passed by the learned Civil Judge (Jr. Div.) & Judicial Magistrate, First Class, Bharatpur, in which the suit for permanent injunction based on easementary rights filed by the respondent -plaintiff (hereinafter 'the plaintiffs') was decreed. The facts of the case are that the plaintiff filed a suit for permanent injunction against the appellant -defendant (hereinafter 'the defendant') Narayandas and his two sons on the ground of easement by prescription in the Court of Civil Judge (Jr. Div.), Bharatpur. In the course of trial, Narayandas died and his wife and daughters were also brought on record as legal heirs. According to the plaint, the plaintiff had purchased a residential house situated at Seth Ka Madd from one Sardar Dilip Singh on 18.04.1960 through a registered sale -deed. At the time of the purchase, the house was two storey, one being the ground floor and the other first floor. In the room on the first floor, as per the sale -deed, there existed two windows with iron bars (Jangla) ad measuring 2' X 2.6' opening to the western side of the house in issue. It was the plaintiff's case that thereafter sometime in the year 1965, construction on the second floor was also raised and in the room constructed, the plaintiff opened two windows ad measuring 4' X 5' with iron bars (Jangla). It was the plaintiff's case that he has been enjoying the air and light from the windows on the western side of the house both on the first and second floors openly, peacefully and continuously without any interruption for the last over 20 years and therefore had come to acquire easementary rights to receive light and air through the aforesaid windows. It was submitted that there was no other source of adequate light and air in the rooms in issue. It was submitted that on the western side of the plaintiff's house existed a shop of the defendants confined to the ground floor, but on 30.07.1994, the defendants had demolished their shop and on or about 01.08.1994 openly declared that they were in the process of building a house on the site of the demolished shop and would close the windows of the plaintiff's house on the western side both on the first and second floors. It was submitted by the plaintiff that in the event the windows on the western side of the house both on the first and second floors were to be closed, she would be denied access to air and light enjoyed for over about 20 years and the consequences would entail the said rooms becoming practically uninhabitable. On the notice of the plaint being served on the defendants, written statement of denial was filed. It was stated that the windows on the western wall of the plaintiff's house both on the first and second floors were not 20 years old consequent to which no easementary rights by prescription was available. It was also stated that the plaintiff had access to air and light to the rooms in issue from the eastern side as there existed doors and a window. It was stated that there was a pre -existing charpetwa wall constructed by the defendants alongside the plaintiff's western wall, had fallen because of heavy rain and partially demolished by the plaintiff. Consequently, the defendants stated that no easementary rights were available to the plaintiff and the suit for permanent injunction be dismissed.

(2.) ON the pleadings of the parties, the learned trial Court framed four issues which are as under:

(3.) COUNSEL for the defendants has emphatically submitted that the findings of the Courts below are absolutely perverse. It was submitted that the Courts below have overlooked the relevant and admissible evidence and invoked irrelevant and inadmissible evidence. Counsel submitted that there was no evidence on record to establish that the plaintiff had access to air and light from the windows on the western side of his house both on the first and second floors for 20 years or more. It has been submitted that the Courts below also committed gross illegality in overlooking the site plan attached to the sale -deed dt. 18.04.1960 (Ex. -2) by which the plaintiff stated to have purchased the house in issue from one Sardar Dilip Singh which indicated that windows of the first floor on the western side of the house in issue were closed. She submitted that mere averments to the contrary in the body of the sale -deed ought to have been no avail to the plaintiff. It has also been submitted that the Courts below also failed to came to a positive conclusion that in the event of closure of the windows on the western side of the plaintiff's house, both on the first and second floors, the diminution of air and light would be substantial enough to make the rooms uninhabitable. It has been submitted that the impugned judgments and decrees have the effect of interfering with the rights of the defendants to the full enjoyment of their property and as the orders of the Courts below have entailed miscarriage justice, this Court should invoke its power under Sec. 100 C.P.C. in this second appeal and quash and set aside the judgment and decree dt. 03.10.1997 passed by the trial Court and upheld by the first appellate Court.