PREM DEVI Vs. SOHAN LAL

JUDGEMENT

(1.) THIS judgment will decide Civil Second Appeal No. 284 of 1976 filed by the legal representatives of original defendants, Civil Second Appeal No. 315 of 1976 filed by Sohan Lal plaintiff and Civil Execution Second Appeal No. 2 of 1977 filed by the legal representatives of defendants-judgment-debtors together as they arise from the same Civil Original Suit No. 42 of 1967 instituted by Sohanlal plaintiff in the court of the Munsif, Nathdwara.

(2.) FACTS leading to these three second appeals are that on February 13, 1967 Sohan Lal plaintiff instituted Civil Original Suit No. 42 of 1967 against Manohar Lal defendant (since having died) with the averments that the plaintiff owned and possessed a three- stored house situated in mohalla Nai Haveli in the town of Nathdwara. The agricultural land of defendant Manohar Lal was immediately adjoining the northern wall of the plaintiff's aforesaid house. There were three ancient windows, one 'teer kas' and two spouts in the first storey, four ancient windows and four spouts in the second storey and four ancient windows and five spouts in the third storey in the northern wall of the plaintiff's aforesaid house through which the plaintiff had been peacefully and without interruption enjoying the right of receiving light and air to his house and the right of discharging water on the field of the defendant from his house for quite a long time. It was alleged that the defendant had no legal right to construct a residential house on the agricultural land till it was converted for non-agricultural use and without obtaining the requisite permission. Despite that the defendant had just started constructing a house on his agricultural land and immediately adjoining the northern wall of the plaintiff's house which 'would result in the closure of the windows and spouts in the northern wall and the plaintiff would be deprived of their. use for ever. The defendant was asked to construct his house after leaving a space of four to six feet wide but he paid no heed to the plaintiff's request. The plaintiff, therefore, instituted the above suit praying for a decree of permanent injunction restraining the defendant from constructing his house just adjoining the northern wall of the plaintiff's house and in case the defendant wanted to construct a house, he should be required to do so after leaving four to six feet wide space from the said northern wall.

(3.) SO, far as the defendants, who have filed Civil Second Appeal No. 284 of 1976, are concerned they have contended in the appeal that the plaintiff had neither pleaded nor proved that he or his predecessor-entitle had enjoyed the right of light and air and the right to drain the water through the spout as an easement, openly, peaceably and continuously for a period of twenty years ending within two years next before the filing of the suit and that by the apprehended infringement, he would suffer substantial damage. It is contended that if in a suit for permanent injunction, substantial damage is not pleaded, the plaint does not disclose a cause of action and is to be rejected.