CHAPSIBHAI DHANJIBHAI Vs. PURSHOTTAM MOTILAL

JUDGEMENT

(1.) THESE two appeals can be disposed of by common judgment for the sake of convenience since they involve some facts which are common to both the cases. Second Appeal No. 217 of 1961 has arisen out of a suit filed by Chapsibhai Dhanjibhai Jain against Purusnottam son of Motilal Jhunjhunwala. Second Appeal No. 218 of 1961 has arisen out of a suit filed by Purushotlam Motilal Jhunjhunwala against Chapsibhai Dhanjibhai Jain. Throughout the judgment, Chapsibhai will be referred to as the plaintiff and Purushottam will be referred to as the defendant The fact underlying this litigation may be briefly stated as follows: There is an open piece of land belonging to the predecessors-in-title of the defendant at Khamgaon, on 5-5-1906 the plaintiffs father took the easternmost portion of this land, measuring 26 feet east-west and 225 feet north-south on lease and passed a kabuliyat in 5-5-1906 in respect of the same. In 1906 the plaintiff's father constructed a building which he started using as a shop in the northernmost portion of the plot taken on lease by him. Again, in 1909 he built a godown in the southern-most portion. In 1921, the plaintiff's father put up a three storied structure in the middle of the plot, that is to say, between the two buildings already constructed by him and started residing therein. There was a well situate to the west of the northernmost strip of the plot leased to the plaintiff's father. The portion to the west of the plot given on lease to the plaintiffs father was lying vacant for a long time. It appears that the defendant's father put up a small structure in the northernmost portion of the land belonging to him to the west of the well, but the year or the construction has not come on record. It is, however, in evidence that in about the year 1954 the defendant had installed a printing Press in the building. Even after the construction of the aforesaid building, the remaining portion to the south of the defendant's plot continued to remain vacant and unoccupied. It is the case for the plaintiff that he used a four feet strip lying to the west or the plot given to him on lease as a passage. The plaintiff has opened six windows on the ground floor and three windows on the first floor of his residential building which have an opening to the west. It appears that, in about 1929, the entire land was measured and the portion leased out to the plaintiff was given plot No. 94 whereas the portion remaining with the defendant was given plot No. 93. The measurement appears to have been based en-the area mentioned in the lease deed. The plaintiff has alleged that, in 1954, the defendant started constructing a building as a result of which five of the windows on the ground-floor and three on the first floor of his building have been blocked. According to the plaintiff, he has acquired a right in the nature of easement of taking light and air through these windows by user for over the statutory period. It is further his case that the roof of his building projects to a distance of about 2 1/2 feet towards the west and that the rain water falls on plot No. 93 from the eaves of the roof. It is also his case that the has put up a 'pakka' gutter from point N to O, and that further to the south he has put up a 'kaccha' drain for the passage of rain water, as also the water used by the residents of the building. According to the plaintiff, the defendant's building almost touches the western wall of his own building and, in that way, not only obstructs the free access of light and air to the windows but also affects the drain. The plaintiff has appended a map along with the plaint. He has described the four feet strip lying to the west of his house by the letters PNHORSTMP. According to the case originally made out in the plaint, the plaintiff claimed a right to this strip by accession to his leasehold property. Later on, he amended the plaint and stated that this strip is a part of the property given to him on lease. The plaintiff contended that the defendant has encroached upon this strip and has spoiled the gutter in parts. The plaintiff has further stated that the defendant has put up an Oil Mill in the newly constructed building, and the noise created by the working of the Mill, the bad odour, emitted by the oil-cakes and the dumping, have created a nuisance for the residents of the building. The plaintiff had also alleged that the vibrations caused by the working of the Mill, had affected the safety of his building; but this aspect of the case is not pressed before me in this appeal by the plaintiff's counsel and need not, therefore, detain us. The plaintiff, therefore, claimed the following reliefs :

(2.) THE defendant resisted the plaintiffs claim on various grounds which may be set out as follows : (1) The lease created under the kabuliyat (Exhibit P-4) is not a permanent lease but a lease for a fixed period of thirty years at the end of which there would be a tenancy at will. (2) The plaintiff and his predecessors-in-interest have, never been in possession of this strip which is mentioned by the letters PNHORSTMP at any time. There is no question of the aforesaid strip amounting to accession to the plaintiff's lease. The defendant also denied that the aforesaid strip was used as a passage for going to the well or taking cattle to the well. According to the defendant, the gutter was constructed recently and the plaintiff had acquired no right of easement so far as the gutter was concerned. (3) As regards the right to take light and air through the windows in the western wall of the plaintiffs building, the defendant contends that this wall is at the western extremity of the plot given to the plaintiff on lease, and the plaintiff, therefore, is incapable of acquiring any rights of easement so far as the passage of light and air is concerned. (4) The defendant has denied that any hind of nuisance is created to the plaintiff or the members of his family either as a result of the noise created by the working of the Mill or as a result of any bad smell emitted through the working of the Mill.

(3.) BEFORE setting out the decisions of the Courts below so far as the plaintiff's suit (for the sake of convenience I will occasionally call it the first suit is concerned, it would he convenient to refer to the suit filed by the defendant. This suit (for the sake of convenience I will call it the second suit) relates to the well which has to the west of the plaintiff's plot. This well has been in existence since before the date of Exhibit P-4 as is clear from the description of the boundaries contained in the deed. It appears that the plaintiff was taking water from this well for domestic consumption and also for the use of his cattle. It further appears that in 1931, with the permission of the defendant, the plaintiff put up a hand-pump for pumping water from the well. Later on, the plaintiff started pumping water from the well with the aid of an electric motor fixed in his own premises. The defendant, therefore, brought a suit for the removal of the pumping arrangement and for an injunction test raining the plaintiff from taking water through the well with the aid of the electric pump. The defendant also wanted a prohibitory injunction restraining the plaintiff from taking water from the well in any manner.