1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 185/2008 (Smt.Bhanumati wd/o Bhagwandas Thakkar & others VERSUS Hasmukh Baldeodas Thakkar & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri C.A. Joshi, counsel for the appellant. Shri D.P. Jaiswal h/f Shri M.G. Sarda, counsel for the R-1 & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 21, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for grant of permanent injunction restraining the defendant no.1 from making any construction on the ground floor, to the western side of the suit house. According to the plaintiff, he had an easementary right by easement of prescription to receive the air and light through the doors and windows on the western portion of the suit house. The construction of the defendant was obstructing the easementary right of the plaintiff, and therefore, the suit was instituted. The defendant denied the claim of the plaintiff and pleaded that the house of the defendant was a two storeyed house originally 2 and was demolished in the fire in the year 1945. It was then pleaded by the defendant that in the year 1980 he sought permission for making two storeyed construction and the new construction of the ground floor was completed in the year 1980 itself and for further construction, the iron pillars were erected. It was pleaded that neither the plaintiff nor his landlord had any right to receive air and light from the property of defendant no.1, and hence, the suit was liable to be dismissed. The trial Court, after considering the evidence tendered by the parties on record, held that the plaintiff had succeeded in proving that he was the tenant of the house in which he was residing but, had failed to prove that he had an easementary right to receive air and light from the property of the defendant. The Court further held that the plaintiff failed to prove that there was no other area or space from which he could receive air or light from the western side of his house. The Court, therefore, dismissed the suit of the plaintiff. The first appellate Court confirmed most of the findings recorded by the trial Court. Though the first appellate Court held that the plaintiff had succeeded in proving that he received air and light from the property of the 3 respondent since 1958, the plaintiff could not prove that the space owned by the defendant no.1 was the only space from where the plaintiff could receive the air and light. The first appellate Court considered the evidence of P.W. 2, the Architect, to hold that the said report was not helpful to the plaintiff for proving that there was total cessation of light and air from the western portion of the suit house. The first appellate Court further held that the air and light could very well enter through the southern side of the plaintiff's house from 4 ½ feet distance between the proposed construction of the defendant no.1 and the western wall of the kitchen. The Court observed that there was ample entry of light and air from the eastern, southern and western side of the house of the plaintiff. The appeal filed by the plaintiff was consequently dismissed. The findings recorded by both the Courts are pure findings of facts which are based on the proper appreciation of the material evidence on record. Since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE APTE