RSA No. 3320 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3320 of 1984 Date of Decision: 09.07.2010 Smt. Roshni Devi wife of Sh. Suraj Bhan, resident of Ghati Acharjan, Mithan Mohalla, Karnal. ... Appellant Versus Smt. Mohan Devi wife of Sh. Lila Krishan, resident of Ghati Acharjan, Mithan Mohalla, Karnal. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kabir Sain, Advocate, for the appellant. Respondent exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 31.01.83, rendered by the Court of Subordinate Judge 1st Class, Karnal, vide which, it decreed the suit of the plaintiff, and, the judgement and decree dated 14.08.84, rendered by the Court of Additional District Judge, Karnal, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Mohan Devi, plaintiff, purchased a house, as fully detailed in para 1 of the plaint, from Hukam Chand and Tirlok Chand sons of Late Jyoti Parshad, vide registered sale deed dated 06.10.84, which had been previously RSA No. 3320 of 1984 2 occupied by her, as a tenant since 1950. It was stated that there existed two ventilators, in the northern wall of the second floor, and, a window, on the third floor of the house, for the last more than 60 years. It was further stated that the light and air, had been passing through these apertures, which had never been interrupted. It was further stated that, as such, the plaintiff, had got the easementary right of light and air, by way of prescription. It was further stated that, the defendant, whose house is situated towards the north of the house of the plaintiff, wanted to close the apertures, by way of construction, thereby depriving the plaintiff of her easementary right of light and air. The defendant, was many a time asked, to refrain, from her nefarious designs, but to no avail. Ultimately, a suit for permanent injunction was filed. 3. The defendant, put in appearance, and filed written statement, wherein, she took up various objections, and contested the suit. It was pleaded that the plaintiff had no locus standi, to file the suit. It was further pleaded that the suit was not maintainable. It was further pleaded that no cause of action, accrued to the plaintiff, to file the suit. It was further pleaded that the plaintiff, was estopped, from filing the suit, by her own act and conduct. It was further pleaded that, the suit, was bad for mis-joinder and non-joinder of parties. It was stated that, the defendant, had every right, to raise construction. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were RSA No. 3320 of 1984 3 struck:- (i) Whether the plaintiff has got a right of easement by way of prescription? If so, its effect? OPP (ii) Whether the plaintiff has no locus standi to file the present suit? OPD (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the plaintiff has got no cause of action? OPD (v) Whether the plaintiff is estopped by his own act and conduct to file and maintain the present suit? OPD (vi) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the defendant (now appellant), which was dismissed, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 14.08.84. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this RSA No. 3320 of 1984 4 appeal, for the determination of this Court:- Whether the Courts below, on complete misreading and misappreciation of evidence recorded perverse findings that the defendant could not legally close the ventilators in the northern wall of second floor and a window on the third floor of the house of the plaintiff, as she had acquired right of easement by prescription of light and air through the same? 10. The Counsel for the appellant, submitted that the Courts below, completely misread and misappreciated the evidence, and law, on the point, in holding, that the plaintiff, was entitled, to the permanent injunction, restraining the defendant, from raising construction, thereby closing the window and two ventilators, existing in the house of the plaintiff/respondent. He further submitted that, the property, in dispute, belonged to the same owner, from whom, separate portions of the same, were purchased, by the appellant and the respondent. He further submitted that, no evidence, was led, that if the window and the ventilators, in existence, in the portion of the building of the respondent, were closed, on account of raising of construction, by the appellant, she would have no other source of light and air, and, as such, the question of enjoying easementary right, by way of prescription, by the respondent, did not at all arise. He further submitted that since the window and two ventilators, are in the common wall, the defendant/appellant, could not be restrained, from raising construction, thereby restricting the passing of light, air and sun rays, to the portion of the plaintiff. He further submitted that, the party- RSA No. 3320 of 1984 5 wall, was ordinarily to be construed to mean a solid wall without windows and openings, and, as such, the plaintiff/respondent, could not claim right of easement, regarding air, light and sun rays, to her building, through the common wall. He also placed reliance, on Sardari Lal Gupta Vs. Siri Krishan Aggarwal, 1984(2), RLR, 211, in support of his contention. He further submitted that the findings of the Courts below, being perverse, are liable to be set aside. 11. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. There is, no dispute, that the plaintiff, had been in occupation of the property, as a tenant since RSA No. 3320 of 1984 6 1950. Thereafter, she purchased the property, vide sale deed exhibit P2. Mohan Devi, plaintiff/respondent, when appeared, as PW1, stated that, she purchased the house, from Hukam Chand and Tirlok Chand, and, proved the correctness of site plan P1. She further stated that, two ventilators, are in the northern wall of the second floor, and, a window, on the third floor of the house, which were, in existence, at the time of purchasing the property. She also, in clear-cut terms, stated that, the light and air, had been passing through these apertures, which had never been interrupted. Her statement, was also corroborated, by Madan Gopal, Draftsman, PW4, a resident of the same mohalla, who prepared the site plan P3, at the instance of the vendors. He claimed, that he had been a resident of the same mohalla since 1945, and, had been seeing the apertures aforesaid, right from the very beginning. It was further stated by him, that if the ventilators are closed, the rooms will become dark. Lakhi Ram, PW6, another witness, produced by the plaintiff, also deposed, that he had been seeing the aforesaid apertures since the year 1954-55. He further stated that the plaintiff, had no other source of light and air, except through the aforesaid apertures, to her house. No doubt, Suraj Bhan, husband of the defendant, appeared as DW1, and, deposed that, he purchased the house three years earlier from Jugan Mala Jain widow of Sh. Jai Chand son of Sh. Jyoti Parshad, in the name of his wife Roshni Devi, defendant. He further stated that, the house, was in a bad condition, at the time of purchase, and, he had constructed a single storey house, and, when he started the construction RSA No. 3320 of 1984 7 of the second storey, the plaintiff, obtained a stay order. He admitted that he purchased the share of Jai Chand, from his widow, out of the whole house, which originally belonged to her father-in-law Jyoti Parshad. He further stated that, the plaintiff, had independent source of light and air, from the first floor of the house, and similarly, light and air, were also available, from the upper portion. Sher Singh, DW2, stated that, Mohan Devi, plaintiff, was having alternative source of light and air, for her house. Daulat Ram, DW3, deposed that, he was residing, in the old house, purchased by Suraj Bhan, and, left the same, in the year 1971. He further deposed that, there was no ventilator. The plan of the property P3, is dated 16.02.64. At that time, there was no dispute, between the parties. In the plan, apertures aforesaid, have been shown. It means that the apertures aforesaid, had been in existence, even prior to 1964, and, the plaintiff, had been enjoying the light and air, through the same since 1950, when she was inducted, as a tenant, and, later on, she became the owner thereof, after purchase. The evidence, produced by the defendant, that the apertures, were of recent existence, and, that there was alternative source of light, to the building of the plaintiff, was rightly held, to be not reliable, by the Courts below, on due scrutiny, as the same, was contradicted, by the documentary evidence, produced by the plaintiff. Since the plaintiff, had been enjoying the easementary right of air and light, through the aforesaid apertures since 1950, initially, as a tenant, and later on, as an owner of the property, in her possession, she acquired an easementary RSA No. 3320 of 1984 8 right by prescription, to enjoy the same and she could not be deprived of the same. In Brajeshwari Dasi Vs. Nityanance Dass, AIR, 1928, Calcutta, 365, it was held, as under:- “If a man sells a house which has windows overlooking adjoining land which he retains he cannot as a general rule, afterwards stop the light from coming to the windows of the house by building on the land for, when granting the house he is presumed to have granted also a right to light through the windows or to have covenanted not to obstruct them and he may not subsequently derogate from his own grant or violate his covenant. So also, if after selling the house, he sells the land to a third person, the latter may not obstruct the right from coming to the windows, for the vendor could only convey the land, subject to the same obligations to which it was subjected in his own hands. The true principle under-lying cases of this kind is that the vendee is entitled to have the enjoyment of the light and air of the ancient windows in the same manner as it was enjoyed during the unity of possession.” 12. The plaintiff, purchased the portion of the building with the apertures aforesaid, alongwith the right and facility of air and light, through the same, which could not be denied, to her, merely because, the other portion, was purchased, by the defendant, and, she wanted, to raise construction, which would amount to obstructing the said apertures. In Nago and another Vs. Mt. Lahani, AIR, 1937, Nagpur, 38, the principle of law, laid down, was to the effect, that it is open, to the Courts, to recognize acquisition of the easement, by the claimant, if he could prove continuous enjoyment for the requisite period by RSA No. 3320 of 1984 9 himself or his immediate predecessor, in occupation of the property. The Courts below, were, thus, right in holding, that the plaintiff, was entitled to permanent injunction, restraining the defendant, from raising construction, thereby, closing apertures aforesaid, as she had acquired an easementary right to light and air through the same. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. Now coming to the question of common wall, it may be stated here, that in the written statement, no specific plea, was taken, by the defendant, that the apertures existed, in the common wall, and, as such, she could not be restrained from raising construction, on the ground, that the construction would block the apertures. Any evidence, led by the defendant, contrary to the pleadings, or in respect of the plea, not taken, in the written statement, therefore, could not be read. No such plea, was also taken up, by the Counsel for the defendant, at the time of arguments, before the Courts below. Mere bald statement of Suraj Bhan, attorney of the defendant, when he appeared, as DW1, that the apertures, are in the common wall, without any substantiation, through any evidence, cannot be taken as a gospel truth. In Sardari Lal Gupta's case (supra), a plea was raised and it was proved, as a fact, that there was a common wall, between the houses of the parties. In the instant case, there is no plea in the written statement, that the apertures, were in the common wall, and, under these circumstances, no help, can be drawn, by the Counsel for the appellant, from the ratio of law, laid RSA No. 3320 of 1984 10 down, in Sardari Lal Gupta's case (supra). The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15 The substantial question of law, depicted above, is answered, against the appellant. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 09.07.2010 (SHAM SUNDER) Amodh JUDGE