NEMICHAND LRS Vs. BASANTILAL

JUDGEMENT

(1.) -This second appeal under section 100 Code of Civil Procedure has been preferred by the defendant appellant against the appellate judgment and decree dated 15.11.1980 passed by the learned Addl. Civil Judge, Udaipur.

(2.) Plaintiff respondent had filed suit for permanent injunction alleging that there was a lane between the houses of the plaintiff and the defendant and that on the northern wall of the plaintiff's one room in the ground floor there was a window of 21/2" x 2" and two smoke passages (131T WC). It was pleaded that for the last about 50 years the plaintiff was enjoying light and air through that window but the defendant was raising wall closing the same. It was also averred that the plaintiffs were discharging water through spout in the lane and the user had ripened in the right of easement but the defendant was putting obstructions. In the written statement, the defendant admitted that there were two smoke passages as stated in the plaint. However, the existence of the window was denied. It was also denied that the plaintiffs had a right to discharge water in the lane. It was averred that the window was opened just one and a half month before the filing of the suit.

(3.) On the pleadings of the parties, the learned Munsif framed three issues. The learned Munsif framed three issues. The plaintiff entered into the witness box and examined PW 2 Sohan Lal and PW 3 Goverdhan. In rebuttal, defendant Nemichand entered into the witness box and examined DW 2 Pannalal, DW 3 Bhuralal and DW 4 Heeralal. After hearing the arguments for the learned counsel for the parties, the trial Court held under issue no. 1 that the plaintiff had been enjoying light and air through the window and the ventilators in the first storey and that he had been discharging water through the spout in the lane. It further held that the plaintiff could not prove that the closure of the window of the room of the ground floor substantially diminished the air and light. The Court, therefore, dismissed the suit to that extent. The remaining suit was decreed.