CHATURBHUJ Vs. RAMJEEVAN

JUDGEMENT

(1.) This is defendants second appeal against the judgment and the decree dated 23rd January, 1967 of the learned Senior Civil Judge No. 1, Jodhpur and it arises out of the following circumstances:

(2.) The plaintiff had a house in Sonaronki Ghati, Jodhpur. To the north of this house is situate a Chabutari on which an idol of Shri Hanumanji was installed by the Sunars. Residents of Mohalla filed a suit in the representative capacity for a declaration that the Chabutari belonged to the residents of the Mohalla. In the northern wall of plaintiff's house there is a 'Jharokha' having apertures 1' x 1' admitting light and air in a 'Maliya' (room) on the first floor of the building. In the year 1968 the defendants in their representative capacity attempted to close the 'Jharokha' by raising a wall on the Chabutari. This conduct of the defendants was resisted by the plaintiff and he was compelled to bring a suit against the defendants with a prayer that a permanent injunction be issued against them restraining them to close the 'Jharokha' by constructing a wall on the Chabutari through which the plaintiff had been enjoying easementary right of admitting light and air in the 'Maliya' for the last 30 years.

(3.) The trial court dismissed the suit of the plaintiff on 18th January, 1960 holding that the plaintiff could not establish that he was enjoying light and air through the apertures in the 'Jharokha' for the last 20 years ending within two years from the filing of the suit. It was also remarked that the plaintiff did not plead any substantial damage by the closure of the apertures in question. The decree passed by the trial Court was taken in appeal before the Senior Civil Judge No. 2, Jodhpur who after setting aside the decree remanded the case to the trial Court with a direction that the plaintiff may be allowed to amend his plaint by pleading substantial loss which shall be caused to the plaintiff if light and air admitted through the apertures of the 'Jharokha' are permanently closed.