Om Parkash and Another vs Rameshwar Parshad and Others

J.V. Gupta, J.—This is Defendant''s second appeal against whom suit for mandatory injunction has been decreed by both the Courts below.

The Plaintiff-respondent filed the suit for mandatory injunction directing removal of their lintel placed on his exclusive wall ''CD'' and also to remove the obstruction to his ventilator EFGH in his wall CD aforesaid The Plaintiff also claimed permanent injunction restraining the Defendants from obstructing his ventilator in the wall ''CD'' on ground floor and windows marked XY therein on the first floor. The claim for relief was based on the allegations that wall CD belonged to the Plaintiff exclusively and, therefore, the Defendants could not encroach upon it and consequently the ventilator and windows therein being time old the Plaintiff had acquired an casement of necessity in respect of light and air received through them as per their enjoyment for the last 30 years. The suit was contested inter alia on the ground that the said wall was common of both the parties; that the ventilators and windows had been opened by the Plaintiff therein towards their side for the last about five or six years. It was thus asserted that the Plaintiff had not acquired any easement of necessity in respect of these. The trial Court found that the wall ''CD'' was the exclusive property of the Plaintiff. It was further found that the Plaintiff had acquired a right of easement in respect of ventilators and windows. Consequently the Plaintiff''s suit was decreed. In appeal, the learned District Judge affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the Plaintiff. Dissatisfied with the same, the Defendants have come up in second appeal in this Court.

Learned Counsel for the Appellants contended that the approach of the Courts below was wrong and illegal as the provisions of Sections 28, 33 and 35 of the Easement Act have not been kept in view while giving the necessary findings. According to the Learned Counsel injunction could only be granted when closure amounts to actionable nuisance and the deprivation of light and air must make the living uncomfortable. In support of his contention, reference was made to AIR 1928 980 (Lahore) AIR 1936 792 (Lahore) and Devinder Kumar Vs. Smt. Chatro Devi,

After hearing the Learned Counsel for the Appellant and going through the case law cited at the Bar, I do not find any merit in this appeal. A concurrent finding has been given by both the Courts below that as regards the second and the third ''khans'' of the shop in dispute, the only source of light and air to them is ventilator EFGH in the wall CD opening on the side of the Defendants. It has been further found that closure of ventilators EFGH in the wall CD would completely block the light and air coming to the shop of the Plaintiff and obviously result in substantial damage. This finding was again reiterated by the lower appellate Court that there is positive evidence that ventilators EFGH in wall CD of shop ABCD in plan Exhibit P. 1 is the only source of light and air to the third ''khan'' of the shop. In view of this findings, it could not be successfully argued that no injunction could be granted because the closure did not amount to actionable nuisance. As a matter of fact, this was never the case set up by the Defendants in the written statement. The main plea taken in the written statement was that the said wall was joint of the parties. If such a plea would have been taken, then issue must have been framed to that effect The only relevant issue framed by the trial Court was-"Whether the wall CD belongs exclusively to the Plaintiff and whether the Plaintiff had acquired essementary tights in respect of the ventilator and two windows in the wall in question." In the absence of any such specific plea, it could not be agitated for the first time in second appeal that the Plaintiff has failed to prove any actionable nuisance or that the obstruction to the light and air has made the living uncomfortable. Since these are questions of facts and no finding has been given by the Courts below in this behalf, the Defendant-appellants could not be allowed to build arguments on those premises.

Consequently, the appeal fails and is dismissed with costs.