ANOPCHAND Vs. MISRILAL

JUDGEMENT

(1.) THIS is a Civil Second Appeal and raises an interesting point of law. The plaintiff appellant is the owner of a shop in village Atbara (Tehsil Sojat ). The plaintiff opened two windows in his shop towards the south. The defendants erected a wall adjacent to the southern wall of, the plaintiff's shop and closed the two windows. The plaintiff, therefore, filed a suit for demolition of the wall erected by the defendants and for a permanent injunction restraining the defendants from closing the windows. The allegation of the plaintiff is that the land on which the defendants had erected the wall was the property of the State being a public lane and the defendants had no right to erect the wall and close the windows of the plaintiff's shop, thus obstructing the passage of light to his shop. The defendants pleaded that there was an old wall of the 'pol' at the spot which belonged to the defendants who were residents of Barfon-ki-Bas and on its falling down the wall was repaired. They also pleaded that the plaintiff had not acquired any prescriptive right of easement and that the defendants had the right to close the windows by constructing the wall in dispute. Both the lower Courts have dismissed the suit holding that the plaintiff had not acquired any right of easement for the passage of light and air through the windows. The trial Court did not give any finding whether any substantial injury had been caused to the plaintiff and the lower appellate court observed that -"it is also necessary for the plaintiff to prove substantial loss or damage,, to achieve success in his suit". and dismissed the suit on the ground that such a loss was not proved. Hence this second Appeal on behalf of the plaintiff.

(2.) IT is a matter of regret that the findings of fact given by the lower appellate court are not very precise. However, the facts established by the evidence on record may be taken to be, as follows: -

(3.) THE contention on behalf of the plaintiff-appellant is that the defendants who were neither the owners nor the occupiers of the land on the, southern side of the shop had no right to erect the wall and close the windows of the plaintiff's shop and the plaintiff can maintain a suit to remove the constructions so raised by the defendants-irrespective of the fact whether he had acquired any right of easement or not.