1 206 SA.592.89 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 592 OF 1989 Shankar Bandu Koli. ... Appellant Versus Sitaram Ganu Koli, since deceased by his heirs and legal representatives: 1-a) Mankabai w/o Sitaram Koli and others. ... Respondents ----- Mr. Suhas Deokar i/b Mr. C.G.Gavnekar for the Appellant. ----- CORAM : A.S.OKA, J. DATE : 05 th December, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant. The Appellant is the original Defendant No.1. The Respondent Nos.1 to 3 are the original Plaintiffs. 2 According to the case of the original Plaintiffs, they are the owners of the house property bearing Grampanchayat Property Nos. 25, 36, 37 and 38 of village Bhose, Taluka Miraj, District Sangli. It is 2 206 SA.592.89 alleged that there are five windows on the ground floor of the said house and the five windows on the first floor of the said house. It is alleged that there is Property No.380 on the southern side of the said house which is a property in the nature of a passage. It is alleged that the Plaintiffs have right of easment to enjoy the air and light from the strip of land having width of 5 and length of 40 feet. It is contended that the Plaintiffs have right to discharge the water on the said strip of land. It is alleged that the house was constructed by the Plaintiffs in the year 1954. It is alleged that the right of easment was enjoyed by the Plaintiffs uninterruptedly from the year 1954 i.e. for a period of more than twenty years before filing of the suit. It is alleged that in the January 1980, the Appellant constructed a tin shed abutting the southern wall of the house of the Plaintiffs and as a result of the construction of the said shed, the light and air of the Plaintiffs has been obstructed and even the right to discharge of the rain water has been affected. Therefore, a suit for declaration of existence of easmentary right and mandatory injunction for removal of the shed 3 206 SA.592.89 erected by the Defendant No.1 was filed. 3 The suit was contested by the Defendants by filing a written statement. It was contended that the building of the Plaintiffs was constructed much later after the year 1954 and it was constructed ten years before filing of the written statement. It was contended that in place of the shed in existence today, there was a house made up of mud which was in existence prior to construction of the house by the Plaintiffs. The said house made up of mud collapsed and therefore, on the same place a tin shed has been constructed. The existence of right of easment was denied by the Defendants. The trial Court dismissed the suit by deciding all the issues against the Plaintiffs. The Appellate Court has interfered by passing a decree by declaring that the Plaintiffs have got right of easment by prescription and right of easment of necessity to receive light and air from the southern side of their house through the windows in existence. It was alleged that the Plaintiffs have right to discharge the water from the roof of their house on the said strip of land. The Defendant No.1 was directed to remove 4 206 SA.592.89 the shed and the heap of stones near the southern side wall of the house property of the Plaintiffs. Perpetual injunction was granted restraining the Defendant No.1 from interfering with the right of easment available to the Plaintiffs. 4 The learned counsel appearing for the Appellants has pointed out that apart from the fact that there is no plea of easment of necessity found in the plaint, going by the admissions of the witnesses examined by the Plaintiffs, the old mud structure of the Defendant No.1 was in existence prior to construction of the house by the Plaintiffs. He submitted that as this factual position has been borne out from the record, the right of easment by way of prescription could not have been claimed by the Plaintiffs. He invited attention of the Court to the relevant admissions. He, therefore, submitted that the acquisition of right of easment by prescription was not proved even going by the evidence of the Plaintiffs. None appears for the Respondents. 5 206 SA.592.89 5 I have given careful consideration to the submissions. While admitting this appeal, this Court has observed that ground '1' involves the substantial question of law. The ground '1' reads thus: “1) Was the Court below correct in holding that the Plaintiffs have established their rights of easment by prescription as provided by Section 15 of Indian Easments Act, 1882, in the facts of the case ?” Perusal of the plaint shows that except for a mere reference to acquisition of easment of necessity in paragraph No.8 of the plaint, there is no pleading at all to show in what manner the right to enjoy air and light has been acquired by way of necessity. In fact all the material pleadings are on acquisition of the easmentary right by way of prescription on the footing that the house of the Plaintiffs was constructed in the year 1954 having ten windows on its northern side. Therefore, on plain reading of the plaint, no declaration could have been granted as regards the easment of necessity. 6 My attention was invited to the evidence of one Mr.Sitaram Ganu Koli (Plaintiff No.1). The said witness deposed for himself and 6 206 SA.592.89 on behalf of the other Plaintiffs. In paragraph No.11 of his deposition, he stated that he was the permanent resident of village Bhose and he was residing there from his childhood. He categorically admitted that from the age of understanding, there was a shed covered by the mud. He admitted that his building and the said shed were of equal hight and were adjacent to each other. 7 The age of the Plaintiff No.1 is recorded as sixty-three years as on 15 th October, 1983 when the evidence was recorded. Thus, his date of birth must be approximately 1920 and in the year of 1954, his age must be thirty-four years. What he has deposed is that from the age of the understanding, he has seen the structure made up of mud of the Defendant No.1 standing which was of the same hight as of his house. This shows that a structure of the Defendant No.1 was in existence even prior to the year 1954. The Plaintiffs examined witness Mr.Tatoba Banne. In his deposition recorded on 15 th October, 1983, he stated that the house of the Plaintiffs has been constructed twenty-five years ago and the construction work was going on for five to six 7 206 SA.592.89 months. In the cross-examination, he admitted that there was one shed which is padded with mud in existence which was of Bandu (father of the Defendant No.1). He stated that he has seen the said shed from his childhood. He stated that the said Bandu died in the year 1954-56. It is stated that the said shed collapsed after about five to six years from the death of the said Bandu. Thus, from the evidence of the witnesses examined by the Plaintiffs, it is very clear that there was a structure of the Defendant No.1 made up of mud which was standing in place of the present tin shed and the said structure was in existence prior to the year 1954 when the house of the Plaintiffs has been allegedly constructed. In view of these admissions, no occasion arose for the Plaintiffs to claim a right of easment by prescription as the house for which the right of easment is claimed was constructed after the structure of the Defendant No.1 was constructed. These vital admissions have been completely brushed aside by the Appellate Court. Hence, there could not have been a decree for declaration and mandatory injunction. 8 206 SA.592.89 8 Accordingly, the appeal succeeds and I pass the following order: i. The impugned judgment and decree of the Appellate Court is quashed and set aside and the judgment and decree passed by the trial Court is restored ; ii. The appeal is allowed on above terms with no order as to costs. [ A.S.OKA, J ]