IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 167 of 1998. Reserved on :13.3.2009 Decided on: 20.3.2009. Amar Nath & Others. …Appellants. Versus Jagat Singh & Anr. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellants : Mr. Ajay Kumar, Advocate. For the respondents : Mr. B.S.Ranjan, Advocate. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 27.12.1997 passed by the learned Additional District Judge, Shimla in Civil Appeal No. 38-S/13 of 1993 setting-aside the judgment, decree dated 30.4.1993 passed by the learned Sub Judge 1st Class (II), Rohru in case No.84/1 of 1988/50-1 of 1991. 2. The appellant No.1 was plaintiff and appellants 2 to 4 were proforma defendants and respondents No.1, 2 were defendants No.1, 2 in the suit filed for permanent prohibitory injunction. The pleaded case of the appellant No.1 is that he and appellants No.2 to 4 had constructed 4 storeyed building on khasra Nos. 415, 416 and 419, Chak Mohal, N.A.C. Rohru in the year 1960. In the year 1987, the respondents No.1, 2 purchased land comprised in khasra Nos. 393 and 394 from previous 1 Whether reporters of Local Papers may be allowed to see the Judgment ? . Yes. owners Salmoo etc. and in August, 1987 they constructed a single storey house. The land comprised in Khasra No. 393 adjoins to the land comprised in Khara Nos. 416 and 419. The respondents No.1 and 2 while raising construction on Khasra Nos. 393 and 394 had left a space of about 8 / 9 inches between the walls towards the building of appellant No.1. The respondents have encroached upon the land of the son of appellant No.1. The storey at ground level of the house of respondents does not affect appellants’ building except that the respondents No.1, 2 have encroached a portion of land of appellant No.1. It has been alleged that second, third and fourth storeys of the respondents house would irreparably affect the house of appellants in as much as the light and air of one window of the second storey, one door and one window of the third storey and one door and two windows of the fourth storey would be completely obstructed and the concerned rooms will become completely dark. 3. The further case of the appellant No.1 is that respondents have no right to obstruct the light and air of the building of the appellants. The building of appellant No.1 was constructed in the year 1960 and he had been enjoying the aforesaid right without any obstruction. The flush pipe fitted from the fourth floor of appellant No.1 building has been obstructed by respondents by erecting a wall over the encroached land. There is no outlet for the sewerage water which has caused imminent danger to the building of the appellant No.1 due to the blockade of the discharge pipes. The appellants No. 2 to 4 are the co-sharers of appellant No.1 in the building. In the plaint, the pleaded cause of action is of 22.2.1988 when respondents threatened to raise construction of second storey of their house. It has also been pleaded that about 10 days ago from the filing of the suit, the respondents had blocked the flow of aforesaid flush pipes of the building of appellant No.1. On these facts, the appellant No.1 had prayed for permanent prohibitory injunction against the respondents No.1, 2 from raising construction on Khasra Nos 393 and 394. A prayer for mandatory injunction was also made to allow the flow of flush pipe water of appellant No.1 building which has been obstructed by respondents No.1, 2. 4. The suit was contested by the respondents No.1, 2 by filing a written statement in which preliminary objections of lack of cause of action, estoppel, maintainability and the appellant No.1 has not approached the Court with clean hands, were taken. On merits, it has been pleaded that the building of appellant No.1 was gutted in fire in the year 1980 and thereafter four storeyed building of appellant No.1 was constructed. It has been pleaded that respondents have left more than three feet space between the two buildings. The alleged encroachment by respondents was denied. The appellants have extended their building unauthorisedly beyond the foundations towards the land of the respondents. The respondents have right to raise construction on their own land. The second and third storey of the building of the respondents would not affect any right of appellant No. 1. The water from the slab of appellant No.1 flows on the roof of the building of respondents and causes nuisance. The appellants have no easementary right over the suit land. There is proper outlet for the flow of flush pipes water. The respondents prayed for dismissal of the suit of appellant No.1. The replication was filed wherein it was pleaded that the building of appellant No.1 was damaged in the year 1980 and the building was repaired. The fourth storey of the building was constructed in the year 1980. The learned trial Court had framed the following issues: 1. Whether the suit is vague and confusing as alleged and if so, its effect ? OPD. 2. Whether the plaintiff is estopped from filing the present suit by his acts, deeds and conduct as alleged ? OPD. 3. Whether by the construction of the disputed house by the defendants there would be any obstruction to the light and air of the house of plaintiff as alleged? OPP. 4. Whether by the construction of this house there would be obstruction to the flow of the flush pipe of the plaintiff’s building as alleged? OPP. 5. Whether the plaintiff is entitled to permanent injunction as mandatory injunction as prayed for? OPP. 6. Relief. The issues No. 1, 2 and 4 were answered in negative, issue No.5 was answered partly in affirmative and issue No.3 fully in affirmative by the learned trial Court and the suit was decreed on 30.4.1993 for permanent prohibitory injunction which was assailed in appeal by respondent No.1 Jagat Singh. The learned lower Appellate Court allowed the appeal and dismissed the suit on 27.12.1997, hence this appeal, which has been admitted on following substantial questions of law:- 1. What is the effect of the finding of the learned Addl. District Judge, Shimla, if there is apparent and glaring discrepancy in the pleadings and evidence adduced by the defendants? 2. Whether the findings of the Ld. Addl. District Judge, Shimla are sustainable in the face of the evidence and legal position as applicable to the facts of the case and whether there has been a complete misreading and mis-interpretation of evidence by the Ld. Addl. District Judge, Shimla? 3. What is the legal effect of the Judgment of the Ld. Addl. District Judge, Shimla, if it is found that he has failed to formulate proper points for determination? 4. When the learned Additional District Judge, Shimla has completely discarded and ignored the relevant and material evidence and has based is due on totally immaterial and irrelevant and has also grossly mis-read the evidence leading to palpably erroneous findings and if so, to what effect? 5. Whether in the facts and circumstances of the case the Ld. Additional District Judge was justified in disturbing the findings of the trial Court by completely mis-reading the evidence and also by ignoring the courts spot memo dated 24/11/92. What are the incidents of right of easement by prescription and what is the legal mode of proving the same? 5. I have heard Mr. Ajay Kumar, learned counsel for the appellants and Mr. B.S.Ranjan, learned counsel for the respondents and have gone through the records. On behalf of the appellants, it has been submitted that the learned lower Appellate Court has erred in reversing the well reasoned judgment of the learned trial Court. The appellants have proved their easementary rights with respect to their building which was constructed in the year 1960 by appellants on their own land. The learned counsel for the appellants has submitted that the learned trial Court had rightly decreed the suit for permanent prohibitory injunction after properly appreciating the evidence on record. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that no case for easementary rights, more particularly of prescriptive easementary right has been pleaded in accordance with law by appellant No.1 in the plaint. There is no allegation of violation of any municipal law in the plaint. In other words, no enforceable legal right has been pleaded by the appellant No.1 for restraining the respondents to raise construction on their own land. In absence of legal right, the appellants have no case. Substantial questions of law No.1 to 5: 6. The substantial questions of law No.1 to 5 are inter- connected, therefore, all of them are being taken up together for disposal. PW-1 Amar Nath has stated that there is Notified Area Committee (NAC) in Rohru. The building was constructed in the year 1960. The respondents No.1, 2 had started construction of the ground floor in the year, 1987. He is enjoying the air and light in his house since 1965. He has produced copies of Khataunis Ex.P-1, Ex. P-2, Ex. P-3 and Ex.P-4. He has also stated that his house was burnt in fire in the year 1980 and before that his house was having three storeys. He constructed the fourth storey in the year, 1980-81. PW-2 Kalag Ram was examined on 5.7.1989 and on that date, he has stated that appellant No.1 had constructed his house about 28 – 29 years ago. He is a resident of village Sajjad which is at a distance of 16 K.M. from Rohru. PW-3 Mohan Singh, Assistant Executive Engineer has prepared plan Ex.PW-3/A. In cross-examination, he has stated that the distance between the foundations of the two buildings is three feet. He has stated that he prepared the plan Ex.PW-3/A as per the directions of appellant No.1. PW-4 Shiv Ram has stated that appellant No.1 had constructed the building in the year 1962-63. PW-5 Ram Lal, Assistant Manager, UCO Bank, Rohru has stated that UCO Bank is located in the first and second storey of the building of Amar Nath since 1969. 7. DW-1 Jagat Singh has stated that distance between the two buildings is three feet. He has also stated that the construction of second and third floors of their building would not obstruct light of the building of appellant No.1. He started the construction of the house in March, 1987 and completed in September, 1987. DW-2 Kewal Ram is the mason, who had constructed the building of respondents 1, 2 and has stated that the distance between the two buildings is three feet. He has also stated that second and third storey of the building of respondents would not obstruct light and air of the building of appellant No.1. DW-3 Sar Chand has stated that the construction of second and third floor of the building of respondents 1, 2 would not affect the building of appellant No.1. Ex.P-1 is the copy of Khatauni of Khasra Nos. 415, 416 and 419 showing four storeyed house on Khasra no. 415 and the same position has been shown in the copy of Khatauni Ex.P-4. Ex.P-2 is the copy of Khatauni of Khasra No. 394 showing two storeyed house and Ex.P-3 is the copy of Khatauni of Khasra No. 393. 8. The appellant No.1 has pleaded that his building was constructed in the year 1960. But in his statement, he has stated that he is enjoying light and air in his building since the year 1965. The appellant No.1 has not led satisfactory evidence to prove that he constructed the building in the year 1960. He has not examined any person who helped him in construction of the building. It appears that appellant No.1 had been renting out the building and UCO Bank, Rohru is occupying first and second storeys of the building since the year, 1969. The appellant has not examined any tenant, occupier of the building on or about of the year 1965 to show that building in the present condition was in existence atleast in the year, 1965. The building of appellant No.1 is in bazaar. PW-2 is a resident of village which is at a distance of 16 KM from Rohru. PW-3 Mohan Singh came to Rohru and occupied the building for 5 – 6 years, but he has not stated that when he occupied the building. PW-4 Shiv Ram is again not the resident of the locality where the building in question is located, according to him, the building was constructed in the year 1962-63 which is not even the case of the appellant No.1. The appellant No.1 has pleaded in the plaint that four storeyed building was constructed in the year, 1960 but in his statement in the Court, he has stated that fourth storey was constructed in the year, 1980-81. The easementary right in the plaint has not been happily pleaded. There is no issue that the appellant has acquired easementary right of light and air with respect to his building. In any case the appellant No.1 has failed to prove that he has acquired easementary right of light and air regarding his building. The appellant No.1 has not produced any revenue record to show the existence of his building since the year, 1960. The copies of Khataunis Ex.P-1 and Ex.P-4 indicate the construction of four storeyed house on Khasra No. 415. According to the appellant No.1, fourth storey of his building was constructed in the year 1980-81, therefore, copies of Khataunis Ex.P-1 and Ex.P-4 are of the period after 1980-81. There is no documentary evidence to show that the building was constructed by the appellant in the year 1960-65. PW-3 has stated that distance between the foundations of the two buildings is of three feet. The appellant No.1 in the plaint has not pleaded violation of any municipal law by respondents 1, 2 for raising their construction. The suit of the plaintiff at the most can be said to be based upon alleged right of easement which he has miserably failed to prove. On behalf of the appellants discrepancy in the pleadings and evidence of respondents No.1, 2 materially affecting the decision has not been pointed out nor it has been pointed out what specific important evidence has been ignored by the learned lower Appellate Court which if taken into consideration, will tilt the decision or inadmissible evidence has been considered by the learned lower Appellate Court. The sweeping submissions that there is mis-reading and mis-interpretation of the evidence by the learned Court below without specific instances are not enough. The spot inspection carried out by the learned Sub Judge on 24.11.1992 has been noticed by the learned Additional District Judge in para 28 of the impugned judgment. In second appeal, the evidence cannot be re-appreciated. The learned Additional District Judge has properly appreciated the material on record. The appellants have failed to make out any case for interference. The substantial questions of law No. 1 to 5 are accordingly decided against the appellants. 9. No other point was urged. 10. The result of the above discussion, the appeal fails and is accordingly dismissed, no costs. ( Kuldip Singh ) Judge. March 20, 2009.(GR)