GANGA CHARAN DHAR Vs. SATKARI LAL DEY

JUDGEMENT

(1.) The plaintiff in the suit out of which this appeal has arisen, prayed for a declaration of his right of easement in regard to light and air. The house in respect of which easement was claimed was purchased from the father of the defendant in the year 1912 by a kabala in which there was no special mention of any right by way of easement, as there was complete unity of title so far as the plaintiff's property in suit and the contiguous property of the defendant were concerned. The kabala purported to transfer the title of the father of the defendant to the house. It was stated by the plaintiff in his plaint that there were two windows on the southern wall of the southern room of the house which could be opened and closed, that these windows let in light and air into the room aforesaid. The plaintiff claimed right of easement by prescription; he also asserted that there was an acquisition of the right by implied grant.

(2.) The cause of action as stated by the plaintiff was that there was obstruction to the passage of light and air caused by the action of the defendant who had raised two walls in October 1925, which had the effect of closing up the two windows mentioned above. The case of the plaintiff was that these walls raised by the defendant were so close to the windows that they could not be opened at all. The defendant denied the right of easement as claimed by the plaintiff in the suit, and it was asserted that there was no right of easement in favour of the plaintiff, and that none could be presumed. The defendant specifically stated in the written statement that no implied grant in favour of the plaintiff could be inferred in favour of the plaintiff. The windows according to the defendant were closed up with nails and iron straps at the time when the house was sold in 1912; and this was done with the object of securing the convenience and privacy of the defendants garden and privy, which were overlooked by the windows in question. It was stated by the defendant that the walls mentioned in the plaint were erected for the purpose of securing the privacy of the defendants house, as the windows were in a broken condition.

(3.) On the pleadings of the parties several issues were raised for trial in the suit. The first of these issues related to the question whether there was any cause of action for the suit: had the plaintiff a right to sue. The question of acquisition of right of easement by prescription was specifically raised in one of the issues, and issue 7 was on the question whether the right of easement in regard to light and air, as claimed in the suit was ever granted to the plaintiff. In view of the points arising for consideration in this appeal, reference to none of the other issues raised in the suit require special mention. The Court of first instance dismissed the plaintiff's suit. On appeal by the plaintiff, the Court of appeal below has reversed the decision of the trial Court, and has passed a decree in favour of the plaintiff allowing his claim in suit. The learned Subordinate Judge in the Court of appeal below has held that the plaintiff will have his right to open the windows and to receive light and air through the windows unobstructed, by removing the iron straps and nails from the shutters, and by removing the walls erected by the defendant.