Kishan Singh Kamal vs Surinder Kumar

N.K. Kapoor, J.—This is unsuccessful plaintiffs regular Second Appeal.

Plaintiff filed a suit for permanent injunction restraining the defendant from closing window ''A'' and Ventilator ''V'' as described in the head note of the plaint by raising a wall in front of the said window ''A'' and Ventilator ''V'' are in the northern wall of the first floor and ground floor respectively of the shop of the plaintiff for the last 50 years. Since the defendant is bent upon closing the window and the ventilator from which the plaintiff is having air and light for the last more than 50 years continuously without any intervention from any one and has acquired right of easement by prescription, hence this suit.

Defendant filed written statement. By way of preliminary objection, it has been stated that the site plan filed by the plaintiff is incorrect. Window ''A'' shown in the site plan is, in fact, a door. Other ventilators and doors which exist in the eastern southern walls have not been shown in the site plan. On merit, it has been stated that northern wall of the property belonging to the plaintiff is joint of the plaintiff and the defendant. According to the defendant, property now owned by the plaintiff and the defendant was earlier owned by one person. At the time when both the properties were owned by one person, there was a door in the wall intervening the property of the plaintiff and the defendant. The shutters of the said door were opening towards the property of the defendant. There was also one step made up of wood by giving a support underneath it by placing a rafter in the wall in dispute which now the plaintiff has removed by cutting the rafter. It has further been pleaded that the purpose of the door has come to an end as the owners of the property had different purpose and thus there is no purpose for the plaintiff to go to the first floor of the property owned by the defendant. Plaintiffs right of easement was denied. It has also been stated that the right of easement of light and air can only be claimed if the property to which the light and air is received becomes uninhabitable. Otherwise also, there are ample other sources of light and air to the property of the plaintiff.

On the pleadings of the parties, following issues were framed:-

(1) Whether the plaintiff is entitled to the right of easement of light and air, through window mark A and ventilator mark V as shown in the plan attached with the plaint ? OPP.

(2) Whether the northern wall of the house of the plaintiff belongs exclusively to the plaintiff qua portion in which disputed window and ventilator are situated ? OPP.

(3) Whether the window mark A is in fact a door and the site plan attached is incorrect ? If so, in what manner ? OPD.

(4) Whether the plaintiff is estopped by his act and conduct from filing this suit ? OPD.

(5) Whether stair case of the shop in dispute is joint of the parties ? OPD.

(6) Whether the plaintiff is entitled to the injunction prayed for ? OPP.

(7) Relief.

Under issue No. 2, it was held by the trial Court that northern wall of the house of the plaintiff does not belong exclusively to the plaintiff qua the portion in which the disputed window and ventilator are situated. Under issue No. 3, it was held that the window Mark ''A'' is, in fact, a door and that the site plan attached with the plaint is incorrect. Under issues No. 1 and 4, it was held that the plaintiff is not entitled to right of easement of light and air through window mark ''A'' and ventilator mark ''V'' and so the plaintiff is estopped by his own act and conduct from filing the present suit. Under issue No. 5, it was held that the stair-case of the shop in dispute is owned by the plaintiff. In view of the findings on the material issues, suit of the plaintiff was dismissed.

The matter was once again examined by the lower appellate Court. Finding in respect of issue No. 4 was reversed, whereas finding in respect of issue No. 2 was affirmed. Issues No. 1, 3 and 6 were taken up together. After exhaustively examining the evidence led by the parties, it affirmed the finding of the trial Court that window mark ''A'' is, in fact a door and it has been wrongly shown in the site plan. As regards the plea of the appellant for a right of easement with regard to window and ventilator, the same was examined in the light of sections 15, 28 and 33 of the Easement Act (for short ''the Act''). On the basis of evidence, the Court came to the conclusion that the remaining light and air through the opening of the stair-case and one ventilator on the ground-floor upon the door of the stair-case and window on the western side just outside the opening of the stair-case on the first floor is sufficient for his enjoyment and so the plaintiff cannot claim right of easement by prescription. Even otherwise, northern wall of the shop of the plaintiff is joint of the parties and so no right of easement can be claimed through that wall. Resultantly, the appeal too was dismissed by the Additional District Judge.

The appeal was admitted only to the extent that the ventilator which is existing at present be allowed to continue. Learned counsel for the appellant has assailed the finding of the Courts below on the ground that both the Courts have misread the oral evidence as well as misinterpreted the documentary evidence adduced by the plaintiff in support of his case. According to the counsel, the window and the ventilator existed before the adjacent property was purchased by the defendant. The plaintiff by continuous interrupted use of light and air through the window and the ventilator had acquired a right of easement which the plaintiff could not be deprived of by the proposed raising of wall by the defendant and such an act would interfere with the right of the plaintiff to air and light from these apertures. According to the counsel, there is ample evidence on record clearly proving that the plaintiff has acquired a right of easement as claimed.

Having heard learned counsel for the appellant and after carefully perusing the judgments of the Courts below, the submission made by him appears to be devoid of any merit. The Courts below on the basis of evidence adduced by the parties have returned a positive finding that the plaintiff has not acquired right of easement of light and air through window Mark ''A'' and ventilator mark ''V''. Not only this, even the factual assertion made by the plaintiff in material particulars have been found to be wrong. Admittedly, both the parties i.e. the property purchased by the plaintiff and the property purchased by the defendant at one time was owned by one person. Both the parties appear to have purchased the present structure from the erstwhile owner. Both the parties are separated by common wall which, as per finding of the Courts below, is joint of the parties. Door at the first-floor of the plaintiffs shop (shown as a window) has opening towards the shop of the defendant. It has also come in evidence that the window/ventilator exist on the other wall of the building owned by the plaintiff which gives sufficient light and air to the property in dispute. On these facts, the Courts below rightly came to the conclusion that the plaintiff has no right to open a door abutting the shop of the defendant. Existence of such an opening clearly interfere with the enjoyment of the property by the defendant. Otherwise too, an opening of door cannot be legitimately justified on the plea of easement of light and air. The right of easement by prescription is to be examined in the light of sections 15, 28 and 33 of the Act. It has to be shown by the person complaining of disturbance of right of easement to show not only that there has been disturbance of easement or of any right accessory thereto, but has also to prove that the disturbance has actually resulted in substantial damage to him. As per Explanation II to section 33 of the Act, no damage would be substantial to the right of free passage of light through the opening in a house unless (i) it is likely to injure the plaintiff by affecting the evidence of the easement of by materially diminishing the value of the dominant heritage; or (ii) it interferes with the physical comfort of the person; or (iii) prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. In the present case, such evidence is missing.

Both the Courts on the basis of evidence has come to a conclusion that the light and air to the property of the plaintiff is to an appreciable extent even with the closure of the door and the ventilator. The conclusion arrived at by the Courts below appears to be just and legal. No illegality is discernible with regard to reception of evidence or its appreciation. Resultantly, finding no merit in the appeal, the same is dismissed.