IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 317 of 1997 Date of Decision: July 10, 2008. Dabe Ram (dead ) LRs. Diwan Chand… ..Appellant. Versus. Khub Ram ..Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant(s): Mr. Ashwani K Sharma, Advocate. For the Respondent(s): Mr. O.P.Sharma, Sr.Advocate with Mr. K.S.Thakur, Advocate. Deepak Gupta, J.( Oral). This Regular Second Appeal has been admitted on the following substantial questions of law:- “1. Whether learned Additional District Judge, Kullu was justified in making observations in the final order to allow the defendant/respondent to raise construction over the disputed land in spite of the fact that the decree passed by the trial court in favour of the appellant/plaintiff was affirmed in toto by the first appellate court? 2. Whether in the given set of circumstances, the defendant could be permitted to raise construction when it was proved beyond cavil that the construction being raised by the defendant /respondent was prejudicial of the easementary rights of light, air and sunshine acquired by the appellant-plaintiff through prescription? 2 3. Whether learned first appellate court could justifiably allow the defendant to raise construction when it was proved before the learned two courts below that such construction would be permanent cause of nuisance to the appellant/applicant? 4. Whether the impugned judgment and decree in appeal passed by ld. first appellate court is sustainable in the eyes of law?” Briefly stated the facts of the case are that the appellant(hereinafter referred to as the plaintiff) filed a suit in the Court of Senior Sub Judge, Kullu, complaining that Shri Khub Ram (hereinafter referred to as the defendant) was raising construction in his land but the said construction would stop all light and air to the verandah of the plaintiff constructed on the eastern side of his property. The defendant contested the suit and stated that he was raising the construction only on his own land and no rights of the plaintiff were being infringed. Issues were framed and evidence was led. The learned trial Court came to the conclusion that the proposed construction of the defendant over his own land would obstruct the right of air and sun light to the house of the plaintiff which he is enjoying from the time of his ancestors. According to the trial court this right had 3 fructified into an easement of prescription and, therefore, he passed a decree restraining the defendant from raising any construction on his own land without keeping proper set back and without ensuring the enjoyment of his easementary rights of sun and air to the house of the plaintiff. The defendant filed an appeal. The learned lower appellate court rejected the appeal but in the concluding portion of the judgment permitted the defendant to raise the construction by constructing western wall of his house at a minimum distance of 2 feet from the end point of the eastern projection of the house of the defendant. The plaintiff is aggrieved against this portion of the judgment. I have heard Shri Ashwani Kumar Sharma learned counsel for the plaintiff and Shri O.P.Sharma, learned senior counsel for the defendant. Shri Ashwani Kumar Sharma submits that once the lower appellate court had upheld the findings of the learned trial Court, he could not have fixed the distance of 2 feet for raising construction without there being any material on record to show that this distance would be 4 sufficient to provide light and air to the house of the plaintiff. On the other hand Shri O.P.Sharma submits that after the judgment was announced by the learned lower appellate court and before the stay order was granted by this Court the defendant raised the construction in terms of the order of the lower appellate court and, therefore, at this stage, this court should not interfere in the said judgment and decree. It would be pertinent to mention that the case was decided by the learned lower appellate court on 7.8.1997. Appeal was filed on 1.12.1997 and on 17.12.1997, this Court passed an ex-parte interim order restraining the defendant from raising any construction. The respondent filed reply and stated that the construction had been completed before passing of the stay order on 17.12.1997. On 7.4.1998, this Court noted this fact and observed that the question as to whether defendant had raised the construction prior to or after 17.12.1997 could only be decided in case the plaintiff files an application against the defendant for disobedience of the interim order. No such application has been filed till date though more than 10 years have elapsed. 5 A perusal of the photographs filed along with the reply to the application for grant of stay shows that two storied house has already been constructed by the defendant and that there is some reasonable distance between the two houses. At this stage, it would not be proper for this Court to order demolition of the structure raised by the defendant. He obviously has complied with the decree of the lower appellate court. Therefore, without going into the merits of this case and without deciding the question as to whether the lower appellate court could have modified the judgment and decree of the learned trial court, I feel that keeping in view the subsequent development and especially keeping in view the fact that the appellant/his legal representatives have till date not filed any application in terms of the earlier order of this Court, the appeal merits dismissal and the same is accordingly dismissed. No costs. July 10, 2008. ( Deepak Gupta ), J. s.