Udham Singh vs Bhag Singh

Hemant Gupta, J.—The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for mandatory injunction directing the defendant to remove the wall illegally constructed in front of the two ventilators in the two shops, was decreed.

The plaintiff-respondent purchased the shops in dispute vide two separate registered sale deeds, dated 17.4.1972 from one Ashok Kumar. It is the case of the appellant that there are ventilators in both the shops in existence for the last more than 60-70 years, whereas the defendant has raised construction of. a wall so as to obstruct the light and air to the shops purchased by the plaintiff through the said ventilators. Therefore, the plaintiff has acquired easementary right to light and air by prescription and thus, has a right to use ventilators and that the defendant be directed to remove the wall constructed by him.

In reply the defendant denied the ownership of the plaintiff and the fact that the said building is more than 60 years old. Even the sale deed executed by Ashok Kumar was said to be forged and fabricated document. The defendant denied that there existed any ventilators as alleged by the plaintiff.

The plaintiff examined Amarjit Singh photographer as PW1; draftsman Ram Murti Chauhan as PW2, who has prepared the site plan Exhibit P6; PW3 Dharam Pal, who has prepared site plan Exhibit P8; PW4 Lehmbar Ram, attorney of the plaintiff and PW5 Tarlok Nath, an independent witness. On the other hand, the defendant examined DW1 Vijay Pal and Architect and himself appeared as DW2.

Before the learned trial Court, the argument raised by the defendant was that the ventilators have been affixed later on. As a matter of fact, during the cross-examination, Lehmbar Ram, attorney of the plaintiff was cross-examined with the plea that such ventilators have been made at the time of institution of the suit. The fact that the ventilators have been affixed by the plaintiff later on, is not the stand taken in the written statement nor any deposition to this effect was made by the defendant while appearing his own witness as DW2. The photographs Exhibits P1 and P2 were produced during the course of evidence, whereas photographs Marks A and B were appended at the time filing of the suit. From the photographs Exhibits P1 and P2, the Courts below have found that the ventilators appear to be different from the remaining wall. While considering the statement of PW2 Ram Murti Chauhan, it was found that the ventilators did not appear to have been inserted later on. It was found that the photographs showing the wall against the two ventilators make it clear that the bricks used in construction thereof seem to be new and the said construction does not appear to be 30-35 years old. Thus, the Court found that the ventilators were in existence since long, whereas the wall has been constructed recently so as to block light and air.

Learned Counsel for the appellant has vehemently argued before this Court that the plaintiff has not appeared his own witness, therefore, the statement of attorney of the plaintiff cannot be read into evidence. However, I do not find any merit in the said argument. The plaintiff is residing in England and in fact, purchased the property in the year 1972 through his attorney only. The attorney has been examined in terms of the authority given, therefore, the statement of the attorney cannot be said to be inadmissible in evidence.

The question required to be examined is whether the ventilators were in existence since long providing right of easement for use of light and air to the plaintiff or the same have been constructed at the time of institution of the suit.

Learned Counsel for the appellant has vehemently argued that the Courts below have negated the claim of the appellant on the ground that the sale deed dated 15.10.1955 was not produced and the said sale deed would show the nature of the existing construction, abutting the property of the defendant-. The Courts below, while considering various factors in respect of the existence of ventilators and the wall have also considered the fact of non production of the sale deed dated 15.10.1955. However, the said fact is not the only consideration, which weighed with the Courts below. Even otherwise, the defendant was aware of the controversy in respect of the existence of the ventilators and the wall blocking the said ventilators but the appellant has not produced such sale deed during the course of evidence. A translated copy of the sale deed is Marked A.1. Such sale deed is in fact in respect of the land measuring 16-1/2 marlas adjoining the shops of Bhagat Singh and Ram Singh, the walls whereof are constructed permanently. In fact, a perusal of the said sale deed shows that, it was the land, which was purchased by the defendant-appellants. Therefore, the said sale deed does not provide any help to the appellant to return a finding that the ventilators were not in existence in the property of the plaintiff.

Both the Courts below have discussed entire evidence to return a firm finding of fact that the ventilators were in existence since long, which have been blocked by raising a wall by the defendant. Such findings do not suffer from any patent illegality or material illegality, which may raise any substantial question of law in the present appeal.

Hence, the present appeal is dismissed.