1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Second Appeal No.154/2009. (LRs of late Ganga Singh Vs. Jethmal & Others) DATE OF JUDGMENT : July 03, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. Sajjan Singh for the appellant. BY THE COURT : The instant second appeal has been filed by the appellant challenging the judgment and decree dated 19.02.2009 passed by learned Addl. District Judge, Nagaur in Civil Appeal No.18/96 affirming the judgment and decree dated 21.11.1996 passed by Civil Judge (Jr. Dn.), Nagaur in Civil Suit No.31/88, whereby, the trial Court partly decreed the suit of the appellant-plaintiff. Brief facts of the case are that a civil suit was filed by original plaintiff Ganga Singh for permanent injunction to maintain accrued easementary rights under the Indian Easement Act, 1882. In the plaint filed by plaintiff Ganga Singh, it was stated that a house was purchased by him and was in his possession at Mohalla Bassi in Nagaur city. The said house was purchased by one Pari Bai on 14.03.1963 by 2 the custodian department and as per the plaintiff late Ganga Singh, he was tenant in the said property. Thereafter, he purchased the property and became owner of the said property. After purchasing the property in question, a dispute arose between the parties with regard to two basements (गजर), shown in map Ex.-4 as two rooms, situated towards the southern side of the house in question. Two ventilators in each room which were shown in map Ex.-4 existed and size of these ventilators is 12” X 15” towards inside and 8” X 6” towards outside and air and light are being received through these four ventilators. As per plaintiff late Ganga Singh, those ventilators were constructed hundred years ago and, in the suit, it was prayed that if these ventilators will be closed, the plaintiff will suffer irreparable loss. Likewise, it is submitted in the plaint that in the first floor of the house in question there is a room in the eastern side and in that room there is a window measuring 20” X 24” which is also shown in map Ex.-4. Ventilators and said window open towards the nohara of the defendant and are in existence since the construction of the house in question. As per the plaintiff, air and light are received only through the window in the room and aforesaid ventilators in the gunjaras. The respondent purchased the nohara from the previous owner in the year 1959 and so called ventilators and window were in existence since purchase; but, now the 3 defendant is desirous of raising construction of a house in the nohara, for which, he has sought the construction permission. As per the appellant – legal representative of original plaintiff late Ganga Singh, the defendants have no right to close the ventilators and window, therefore, suit was filed by the original plaintiff late Ganga Singh. The trial Court, after due trial, decreed the suit in part in favour of plaintiff Ganga Singh and passed decree whereby the learned trial Court restrained the defendants from closing the window and ordered that the defendants shall not make any obstruction with regard to easementary right of air and light. The trial Court, however, dismissed the suit with regard to easementary right of air and light through alleged ventilators. The judgment and decree passed by the trial Court was challenged by the plaintiff in appeal for granting the remaining relief but the appellate Court dismissed the appeal and affirmed the judgment and decree passed by the trial Court. Hence, the plaintiff has preferred this second appeal. The main argument of the appellant in this second appeal is that the learned trial Court erred in not accepting the suit in toto because, admittedly, the house was constructed hundred years ago but the learned trial Court has misread the evidence and ignored the correct factual aspect of the commissioner's report and while accepting the easementary right of window in the room of the first floor, 4 similar right with regard to light and air from the ventilators was denied whereas the plaintiff has proved his case with regard to easementary right of light and air received from the ventilators in the basement. Therefore, upon perusal of the finding arrived at by both the Courts below, it is manifestly clear that the Courts below have committed error while not appreciating the evidence on record in correct perspective because while deciding issue No.3 in part against the plaintiff-appellant learned trial Court as well as appellate Court committed substantial error in drawing inference and misconstruing the evidence. In fact, the suit was to be allowed in to to because the easementary right accrued to the plaintiff when he purchased the said property. I have considered the arguments of learned counsel for the appellant and perused the judgments passed by both the Courts below. Admittedly, late Ganga Singh, plaintiff was subsequent purchaser of the property in question and learned trial Court after considering the entire evidence on record came to the conclusion that the plaintiff has easementary right up to the first floor where the window is opening; but, while considering the commissioner's report in right perspective, the learned trial Court has reached the conclusion that no easementary right is available on the ground floor, in which, the plaintiff is claiming easementary right of light and air through the alleged ventilators. In this view of the matter, 5 the finding arrived at by the learned trial Court is based upon appreciation of the evidence on record and after perusal of the commissioner's report. No substantial question of law emerges for interference by this Court in the instant second appeal. This second appeal is, therefore, according dismissed being bereft of any merit. (Gopal Krishan Vyas) J. Ojha, a.