Regular Second Appeal No.2049 of 1998. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.2049 of 1998. Date of decision:30-1-2008 Amar Nath and others. ...Appellants. Versus Madan Lal Sharma. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Sanjiv Gupta Advocate for the appellants. None for the respondent. ... K. C. Puri, J. Judgment. This Regular Second Appeal is directed against the judgment and decree dated 18.5.1998 passed by the Additional District Judge, Ambala whereby he dismissed the appeal filed by the appellants. Budha Devi, plaintiff filed a suit for permanent injunction for restraining the defendant from closing ventilators mark X1 to X4 and X9 to X10 existing in the eastern wall AB on the ground floor and Regular Second Appeal No.2049 of 1998. -2- windows mark X5 to X8 and X15 to X16 existing on the eastern wall on the ground floor and first floor of house No.5444-45/3, situated in Kucha Pandit Madho Ram, near Dal Bazar, Ambala City. Budha Devi died during the pendency of the suit and her legal representatives, now the appellants, were impleaded in her place. It was pleaded that Budha Devi was the owner of house in dispute. On the eastern wall of that house, there existed four ventilators mark X1 to X4 on the ground floor and mark X8 to X13 on the first floor. Similarly, there were four+9 windows on this wall mark X5 to X8 and two windows mark X15 and X16 on the second floor. The plaintiff and her family members have been using the same and there was no interference from any quarter in this regard whatsoever. The light and air was being used by the occupants of the house in dispute through the said windows and ventilators as a matter of right since time immemorial. The existence of these ventilators and windows in the eastern wall of the house is very much necessary and if the same are closed, then it will curtail the right of air and light which cannot be compensated by way of money. In the eastern side of the house in dispute, there was vacant land and the defendant. alleging himself to be the owner of the same was threatening to close the ventilators and the windows by raising a wall for which he has no right, title or interest. On notice having been issued, the defendant contested the suit. It was denied in the written statement that the plaintiff or any Regular Second Appeal No.2049 of 1998. -3- other person was entitled to light and air through the ventilators and widows. In fact, the father of the defendant was a tenant in the house and he constructed a wall closing the ventilators and windows on the first floor. That wall fell down and taking advantage of that fact, the plaintiff filed the suit with ulterior motive. It was denied that the plaintiff ever acquired any right of easement of necessity in case of light and air. Moreover, the question of easement of necessity only arises in case of passage. It is further pleaded that even if the existence of ventilators and windows is proved, the plaintiff is not entitled to any injunction. It was denied that due to construction of a wall in his house, there will be any obstruction to light and air in the house of the plaintiff or there will be any curtailment of rights in this regard. From the pleadings of the parties, the following issues were framed by the learned trial Court;- 1.Whether the plaintiff has acquired right of ownership by way of easement as alleged?OPP. 2.Whether the plaintiff has not disclosed the full particulars of easement. If so,to what effect?OPD. 3. Relief. The learned trial Court vide judgment and decree dated 18.2.1997 dismissed the suit of the plaintiff with costs. The legal representatives of the plaintiff did not feel satisfied. They preferred an appeal which was dismissed by the then Regular Second Appeal No.2049 of 1998. -4- learned Additional District Judge, Ambala vide impugned judgment and decree dated 18.5.1998. Still feeling dis-satisfied, the legal representatives of the plaintiff filed the instant appeal. I have heard arguments of learned counsel for the appellants and have gone through the record of the case. After hearing counsel for the appellants, the following questions of law are formulated:- 1. Whether the judgments of both the Courts below have been mis-interpreted and are based on mis-reading of pleadings and evidence of the parties? 2. Whether in view of Section 58 of the Indian Easement Act, 1882 the plaintiff acquires right of easement of air and light? Although during the course of arguments, the learned counsel for the appellants submitted that the learned trial Court has mis-read and mis-interpreted the pleadings and evidence of the parties but the pointed attention of this Court has not been drawn to any pleading and evidence which are allegedly mis-interpreted or mis-read by both the Courts below and as such the first question of law formulated above stand answered in favour of the defendant/respondent. Regarding second question of law formulated above, the Regular Second Appeal No.2049 of 1998. -5- learned counsel for the appellants has submitted that the windows and ventilators towards the house of defendant are in existence for the last 60/70 years and the plaintiff/appellants have acquired the right of easement in respect of air and light through the windows and ventilators. In support of this arguments, the learned counsel for the appellants has relied upon authority reported as Mahant Bikram Dass Versus Shiromani Gurdwara Parbandhik Committee, Amritsar, 1992(2) Recent Revenue Reports 50. I have carefully considered the submissions made by Mr. Gupta but do not find any force in those submissions. Both the Courts below have given concurrent finding that the plaintiffs have failed to prove the right of easement of necessity in respect of light and air from windows and ventilators towards the house of the defendant. That being a finding of fact cannot be interfered with in the second appeal. Both the Courts below have returned a finding that the house of the plaintiffs opens on two sides where the streets are situated. Even in the map, Exhibit P-1, produced by the plaintiff-appellants, it is crystal clear that the house of the plaintiffs opens on two sides where streets are there. Both the Courts have given a finding that the plaintiffs have got sufficient light and air for their house and the suit is mala fide. That concurrent finding of fact could not be assailed by the plaintiffs in any manner. Exhibit P1, map supports the findings of both the Courts below. So, the plaintiffs cannot have the benefit of authority reported Regular Second Appeal No.2049 of 1998. -6- as Bikram Mahant Dass (supra). In view of above discussion, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. January 30,2008. ( K. C. Puri ) Jaggi Judge