THE HON’BLE SRI JUSTICE C.V. RAMULU SECOND APPEAL No. 316 of 2010 JUDGMENT: This second appeal, under Section 100 of the Code of Civil Procedure, is directed against judgment and decree made in A.S. No. 27 of 2007 dated 21.8.2009 on the file of the learned V Additional District Judge, Nellore whereunder the judgment and the decree made in O.S. No. 776 of 2003 dated 30.11.2006 were confirmed and the appeal was dismissed. Plaintiff is the appellant. Respondent is the defendant. Appellant laid suit in O.S. No. 776 of 2003 seeking injunction against respondent-defendant not to raise any structures blocking the ventilation of his house. Though temporary injunction was granted, according to the learned counsel for the appellant, respondent- defendant raised structures. Therefore, appellant got amended the prayer in the suit for grant of mandatory injunction in view of the fact that structures were already raised by the defendant. The defendant filed written statement denying the plaint allegations and the right of plaintiff as put-forth by her. On the basis of the pleadings of both the parties, the trial Court framed the following issues: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. To what relief? Additional issue was framed on 27.4.2005 as follows: “Whether the plaintiff is entitled to mandatory injunction as prayed for? On behalf of plaintiff, PW-1 was examined and Exs.A-1 to A-10 were marked. Whereas, DWs 1 and 2 were examined and Ex.B-1 was marked on behalf of the defendants. Exs.C-1 to C-4 were marked by the Court. After detailed consideration of oral and documentary evidence, the trial Court came to the conclusion that the appellant was not entitled for any injunction as prayed for and accordingly dismissed the suit. Aggrieved by the same, the appellant-plaintiff filed appeal in A.S. No. 27 of 2007 on the file of V Additional District Judge, Nellore. On a perusal of judgment and decree passed by the trial Court as well as the evidence available on record, the lower appellate Court came to the conclusion that the trial Court has not committed any error calling for its interference and, accordingly, dismissed the appeal confirming the judgment and the decree passed by the trial Court. Aggrieved thereby, the present second appeal is filed. Heard learned counsel for the appellant and perused the entire material made available on record. Learned counsel for the petitioner strenuously contended that the Courts below have not taken the incidents that occurred during pendency of the suit and not appreciated the evidence available on record, properly. DWs 1 and 2 have categorically admitted that there was ventilation to the walls of the appellant-plaintiff. Further, the reports of the advocate-commissioner also established the fact that ventilation was available to the walls of appellant-plaintiff. But, the Courts below held that this aspect was not proved. The reasons given by the Courts below are not based on evidence available on record and, therefore, the judgment and the decree passed by the trial Court as confirmed by the lower appellate Court is liable to be set aside. However, a perusal of the material available on record discloses that though the suit was filed claiming permanent injunction, the plaint was thereafter amended seeking mandatory injunction. In this case, admittedly, though the appellant-plaintiff asserted that there was temporary injunction and the said temporary injunction was violated by the respondent-defendant by raising structures, he did not raise any such issue during the pendency of the suit except seeking amendment of the prayer from permanent injunction to that of mandatory injunction. The issue before the Courts below was not as to whether any ventilation was existing or not. The issue was whether the appellant was entitled for mandatory injunction or not. The appellant- plaintiff miserably failed to establish that he is entitled for mandatory injunction. Therefore, the trial Court rightly dismissed the suit filed by appellant-plaintiff, which was rightly confirmed by the lower appellate Court. Therefore, the substantial question of law raised by the appellant that “whether the Courts below went wrong in allowing respondent/defendant to enjoy the constructions made in violation of temporary injunction order in a pending suit, which act of respondent/defendant admittedly blocked air and ventilation to plaintiff through the windows/ventilation fixed to the northern side of boundary wall of suit property, by dismissing the relief sought in the suit and the appeal for grant of mandatory injunction to remove the illegal construction”, does not arise. Further, it is seen that the appellant-plaintiff has not asserted that he has been enjoying the windows/ventilation for more than 20 years as a matter of prescriptive right etc. Even if there was any such pleading, absolutely no evidence was adduced on this aspect. Having regard to the facts and circumstances and the evidence available on record, this Court is of the considered view that no question of law much less substantial question of law arises for consideration in this second appeal. The judgment and the decree passed by the trial Court as confirmed by the lower appellate Court needs no interference by this Court in this second appeal under Section 100 of C.P.C. The second appeal is devoid of merits. It is accordingly dismissed. JUSTICE C.V. RAMULU. Date:29-4-2010. MVB.