THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Second Appeal No.679 of 2010 ORDER: The appellant owned a substantial extent of property abutting Madras Road, Kadapa town. He sold the vacant land on the eastern side, which is on the rear side of the portion retained by him, in favour of the respondents through a sale deed dated 02.08.2000. He attempted to open doors in first floor of the building towards the eastern side. The respondents objected to the same. Therefore, he filed O.S.No.1055 of 2003 in the Court of Principal Junior Civil Judge, Kadapa for he relief of perpetual injunction. The respondents filed written statement and denied the claim of the appellant. In addition to that, they filed a counter claim for the relief of mandatory injunction requiring the appellant to remove the window fixed by him. Through its judgment dated 29.12.2005, the trial Court dismissed the suit and allowed the counter claim. The appellant filed A.S.No.64 of 2006 in the Court of I Additional District Judge, Kadapa. The appeal was dismissed on 17.03.2010. Hence, this second appeal. Heard the learned counsel for the appellant and the learned counsel for the respondents. Though the suit was filed for the relief of perpetual injunction, on account of filing of the counter claim, the purport thereof included the relief of mandatory injunction also. On the basis of the pleadings of the parties, the trial Court framed as many as five issues for its consideration, which read as under: 1. Whether the plaintiff has no right or title over the property shown as EFGH in plaint plan? 2. Whether the plaintiff has only right to draw sullage water through pipe lines under ground all along EFGH without claiming right of passage? 3. Whether the defendants purchased under registered sale deed dated 2.8.2000 east – west 60 feet on both sides in which plaintiff has no right? 4. Whether the plaintiff has no right to open ventilators and windows in to EFGH? 5. whether the plaintiff is entitled to permanent injunction as prayed for? On behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A.1 to A.7 were filed. On behalf of the respondents, D.W.1 was examined and Exs.B.1 to B.3 were filed. The trial Court dismissed the suit and allowed the cross objections and the same was affirmed by the lower appellate Court. The trial Court as well as the lower appellate Court have undertaken detailed discussion of the oral and documentary evidence. It emerged that not only Ex.B.2, the sale deed in favour of the respondents executed by the appellant indicated that the western boundary of the property is a rear wall of the premises owned by the appellant, but also in his cross examination, the appellant admitted that there does not exist any other common property in between the one covered by Ex.B.2 and the one retained by the appellant. In that view of the matter, he cannot claim the right to open windows. The recital in Ex.B.2 to the effect that the appellant and other neighbours have access through a strip of land to effect repairs to their properties was noticed. That however does not confer any right upon the appellant to open windows. One fact which however needs to be taken into account is that even by the time Ex.B.2 came to be executed, there existed ventilators on the rear side of the premises retained by the appellant. Though he was not justified either in fixing windows or making attempt to put new ones, he cannot be denied the right to have ventilators in the premises either in the first floor or ground floor. Therefore, the second appeal is partly allowed modifying the decree passed by the trial Court to the effect that the appellant shall not be entitled to open windows on the rear side of the premises retained by him, but he shall be entitled to fix ventilators above six feet from the roof level to the premises without fitting any doors to it. Further if any pipeline existed for providing drainage water as on the date of execution of Ex.B.2, the same shall not be disturbed. There shall be no order as to costs. __________ 03.08.2010 JSU THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Second Appeal No.679 of 2010 Date: 03.08.2010 JSU