IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.17 of 2004 Harihar Barai son of late Manik Barai, resident of village and P.O.–Derhgaon, P.S. Dawath, District Rohtas. ……..Defendant-Appellant-Appellant. Versus 1. Krishna Barai 2. Jai Bahadur Barai Both sons of late Manik Barai, resident of village Darhgaon, P.S. Dawath, District Rohtas. 3. Mohan Barai son of Harihar Barai, resident of village and P.O. Derhgaon, P.S. Dawath, District Rohtas. ..Defendants 1st party-Appellants-Respondents 1st set 4. Sri Lakshmi Natheshwar Mahadeo, through Mutwali Sri Vijay Krishna Mishra son of Late Sheo Kumar Mishra, resident of village Derhgaon, P.S. Dawath, District Rohtas. …..Plaintiff-Respondent-Respondent 2nd set 5. Ram Narain Barai, son of Late Rangila Barai, 6. Sheo Narayan Barai 7. Tarkeshwar Barai Both sons of late Rangila Barai 8. Nirmal Kumar Barai 9. Jiwan Kumar Barai 10. Ashok Kumar Barai sons of Ram Narayan Barai 11. Sheo Kumar Barai 12. Paras Nath Barai Both sons of Sri Raghunath Barai 13. Bidar Barai son of Sheo Kumar Barai 14. Manoj Kumar Barai son of Parasnath Barai 15. Surendra Prasad Barai 16. Birendra Prasad Barai Both sons of Bhagwan Barai 17. Punam Kumari daughter of Late Awadhesh Barai 18. Shankar Dayal Barai son of Late Bhagwan Barai 19. Sheonath Barai 20. Sidhnath Barai Both sons of Hiralal Barai. 21. Brajlall Barai son of Chhabila Barai 22. Ajir Kumar Barai son of Sheonath Barai. 23. Hanuman Barai son of Briksha Barai 24. Rajendra Barai son of Bhagwan Barai All resident of village and P.O. Derhgaon, P.S. Dawath, District Rohtas. 25. Hiralall 26. Jawahar Lall 27. Munna Lall sons of Ramanand Barai 28. Lakhpato Devi wife of Prabhudayal Barai 2 residents of village and P.O. Derhgaon, P.S. Dawath, District Rohtas……….Defendants-Respondents-Respondents 3rd set. For the appellant : Mr. Nikesh Kumar, Advocate. For respondent no.4 : Mr.Raghubansh Singh, Sr. Advocate with Mr. Rajani Kant Singh, Advocate. For the remaining respondents : None. ----------- 17/ 04.05.2010 Heard learned counsel for the appellant and learned counsel for respondent no.4. 2. This second appeal has been filed by defendant- appellant-appellant challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No.58 of 1986 (420/1989) which was filed by the plaintiff-respondent-respondent no.4 for declaration that the defendants had no right to use plaintiff’s land in Plot No.1880 which was adjacent east to the house of the defendant over Plot No.1881 either for opening a widow and chhajja or for laying any water pipe and also for restraining the defendants from interfering with the construction of boundary wall by the plaintiff over his Plot No.1880 and for other ancillary reliefs. The said suit was decreed on contest by Munsif, Vikramganj vide his judgment and decree dated 20.04.1993. 4. Against the said judgment and decree of the trial court defendant-appellant filed Title Appeal No.68 of 1993 which was dismissed on contest by Additional District Judge-III, Rohtas vide his judgment and decree dated 29.09.2003. Against the aforesaid judgments and decree of the courts below the instant second appeal 3 has been filed. 5. Learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the courts below stating that the suit was clearly barred under the provisions of sections 25 and 27 of the Limitation Act, 1963, as admittedly the defendant- appellant had constructed a house over his land of Plot No.1881 about 50 years back before filing of the suit opening his windows with 2 feet chhajja in length on the eastern side and also putting water pipes on the eastern wall of his house, hence any right of the plaintiff over the said portion of land which contained chhajja and pipes of the defendants has extinguished. In this connection he relies upon a decision of the Apex Court in case of Prem Singh & ors. vs. Birbal & ors., reported in 2006(3) P.L.J.R. (SC) 179. Hence, he claims that the suit itself being barred under the law of limitation and easement no relief should have been granted by the courts below to the plaintiff. Learned counsel for the appellant further submits that the courts below have specifically held that the windows in the eastern wall of the defendant’s house shall remain as earlier which was completely contradictory to the relief granted by the court to the plaintiff by decreeing his claim. 6. Considering the averments made by learned counsel for the parties and the materials on record, including the impugned judgments and decree of the courts below, it is quite apparent that the specific claim of the defendants was that their Plot No.1881 continued till 2 feet from the eastern wall of their house and only thereafter the 4 land of the plaintiff bearing Plot No.1880 started, but both the courts below after considering the pleadings and evidence of the parties came to the conclusion that no land of Plot No.1881 was left by the defendants to the east on their house and the eastern boundary of defendants’ house was the boundary of Plot No.1881. The courts below came to the said finding after considering the pleadings and evidence of the parties and this court does not find any illegality therein. Hence, it is quite apparent that the land of the plaintiff in Plot No.1880 is just adjacent east to the eastern wall of the defendants’ house over Plot No.1881. 7. In the said circumstances it is also clear that the plaintiff was only trying to construct his boundary wall at the western end of his Plot No.1880, but the defendants were objecting on the basis of their windows, chhajjas and pipes. It is quite apparent that the act of the defendants by opening their windows and constructing their chhajjas and fitting their pipes on its eastern boundary wall beyond their land were illegal acts as it abutted on the land of the plaintiff. So far the question of sections 25 and 27 of the Limitation Act, 1963 is concerned, it is quite apparent that the land in question was found to be in possession of the plaintiff who was trying to construct his boundary wall on the western extremity of his Plot No.1880 and it were the defendants who were obstructing him. In the said circumstances, there is no question of any extinguishment of plaintiff’s right over the suit land. 8. So far the question of easement with regard to the 5 windows, the chhajjas and the pipes is concerned, it is stated that the rooms receive air and light from the said windows and water flows through the pipes, but there is absence of any material to show that the defendants had no other source of air and light for the house or that there is no other place from where the water can be discharged through the pipes. In the said circumstances, the defendants cannot legally raise any such flimsy claim of easement seriously affecting the right and title of the real owner. 9. So far the case law relied upon by learned counsel for the appellant in case of Prem Singh & ors. (supra) is concerned, in paragraph-11 thereof it is specifically stated that limitation is a statue of repose. It ordinarily bars a remedy, but does not extinguish a right. The only exception to the said Rule is to be found in section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This case law is not at all applicable to the aforesaid facts and circumstances of this case, specially when the suit had not been instituted either for declaration of title or for possession of the property, rather it was only filed for restraining the defendants from interfering with the possession of the plaintiff. Furthermore, from the discussions made in above paragraphs it is quite apparent that sections 25 and 27 of the Limitation Act are not attracted to the facts and circumstances of this case. 10. So far the finding of the trial court with regard to 6 the windows on the eastern wall of defendants’ house is concerned, no doubt the windows are fitted in the said wall which is admittedly on the plot of the defendants and hence there was no occasion for the plaintiff to interfere with the wall of the defendants on their land or with the spaces left therein. There is no contradiction as such, as the plaintiff can use his land and construct his boundary wall thereon according to his own wishes as has been held by the courts below. 11. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish (S.N. Hussain, J.)