LACHMI NARAIN Vs. RAM BHAROSEY

JUDGEMENT

(1.) To understand the facts of this appeal it will be necessary to look at two plans which I have marked for the sake of identification with my own initials and have numbered them as 1 and 2. The parties are neighbours. The plan LGM 1 will show that the plaintiff's house lies to the south-east corner. There is a piece of land which is described as the land in dispute. To the east of that land is the defendant's house. It occupies almost the whole of the eastern boundary of the land. To the south of the land are a temple and a house besides the plaintiff's platform which is really nothing but a stepping stone into the plaintiff's house which is to the further south. To the west of the land is a public road and to the north is a third person's house. The plaintiff's house is shown in map LGM 2. If the lines AB and CD be fitted on to the lines AB and CD on the plan LGM 1 a clear idea of the whole situation could be made. The house of the plaintiff is already mentioned, lies to the south-(SIC) corner of the land in dispute. The entrance into the house lay over this piece of land: but after the plaintiff's house has been once reached, all concern with this open piece of land ceases. The land does nothing more than provide a means of passage into the plaintiff's house. I am for the present not speaking of any passage of air and light-a topic which is in controversy in this appeal.

(2.) The plaintiff's case was that he had a right of easement over the entire area of the disputed land for the purpose of using it for sitting purposes on occasions of births or deaths in the family. That portion of his case has been found against him. The plaintiff also claimed a right of way over the land and this portion of his claim has been acceded to him. The plaintiff further claimed a right of easement for air and light to his house through this open space. The plan does not clearly specify, vide para. 2 of the plaint, the portions of the plaintiff's building to which light and air were received though this open piece of land. Para. 2 however of the plaint shows that all that the plaintiff claimed was that he received light and air through a certain doorway at the letters. A and B in plan LGM 1, and through a window in the upper storey shown in the plan LGM 2 by the letter W. As to the window, it has been found that it does not appertain to any room. The space behind the window is an open one and forms the roof of the first story. It is clear, therefore, that this portion of the claim was rightly dismissed in the Court below.

(3.) The plaintiff's complaint is that the defendant was building a wall, being a portion of a contemplated building, at a distance of 6 6" from his platform and that there was a danger of light and air being shut out by this wall. It appeared during the course of investigation in the Courts below, that the proposed wall was to go as high as 20, that being the height of the buildings of the defendant and the plaintiff on the spot. Dr. Katju has, to-day, agreed, after consultation with his client, that the defendant would not take the building to a greater height than 12 from the surface of the disputed land.