LALLUBHAI PRAGJI Vs. BHIMBHAI DAJIBHAI

JUDGEMENT

(1.) The point in these appeals la very peculiar. These appeals arise out of two suits which were brought by the plaintiff Bhimbhai Dajibhai and the defendants respectively with regard to an easement. The facts are extremely simple, though they have given rise to a certain amount of confusion in the mind of the trial Court. The question is as to the right of the defendants, by whom 1 mean the defendants in the first suit, to open two windows and arches in the western wall which adjoins the plaintiff's house. There is no dispute as to the facts. The defendants house was built in 190k The easement regarding the use of light and air for that house commenced in May 1904 and in November 1923 the plaintiff Bhimbhai obstructed the use of these windows and arches by the defendants, but the obstruction was removed by the defendants and the plaintiff has brought the suit on January 3, 1924, for an injunction against the defendants ordering them to remove the windows and not to obstruct him in removing them.

(2.) Admittedly the interruption to the exercise of the easement by the defendants lasted for less than a year for five months and, therefore, under explanation (2) to Section 15 of the Indian Easements Act, the interruption being for less than a year was not an interruption within the meaning of the section. In the month of June 1924 while the plaintiffs suit was pending, the defendants brought a suit against the plaintiff for a declaration under Section 15 of the Indian Easements Act that they had acquired an easement to the use of the light and air by an uninterrupted enjoyment for a period of twenty years. These two suits are said to have been consolidated, although the Civil Procedure Code does not make provision for consolidation of suits. What actually happened was that the evidence was recorded in one suit and was used as evidence in the other.

(3.) The Subordinate Judge who tried the case framed the following issue: (1) Whether the defendants proved the alleged esaement and enjoyment thereof in the manner for the period required in law ?