MT. ALIFANNESSA Vs. ALI AKBAR
LAWS(GAU)-1958-1-8
HIGH COURT OF GAUHATI
Decided on January 30,1958

Mt. Alifannessa Appellant
VERSUS
ALI AKBAR Respondents


Referred Judgements :-

SHER MAHAMMAD V. MT. MAHBUB BEGUM [REFERRED TO]
RAJANI KANTA DAS, ON HIS DEATH, GOLAP SUNDARI DASI VS. NIRMAL CHANDRA DAS [REFERRED TO]


JUDGEMENT

Sarjoo Prosad, C.J. - (1.)THIS is an appeal by the Plaintiff who instituted the suit for declaration of her right of easement of light and air over the adjoining land of the Defendant, and also for a mandatory injunction preventing the Defendant from completing the construction of his house, in such a way as to cause obstruction to her rights. During the pendency of the suit, a temporary injunction was granted to the Plaintiff directing the Defendants to stop construction altogether. But this order has been modified and the Defendant] No. 1, Ali Akbar was allowed to complete the construction of the house by shifting the wall on the south -western side to a distance of one cubit further towards the north.
(2.)THE Plaintiff claims to be the owner and occupier of dag No. 1157, which has an area of 4 kathas, 1 lecha. This dag lies contiguous south of the Defendant's land covered by dag No. 1158. The Plaintiff claimed that she had been enjoying free air and light coming through the Defendant's land to her house, which is situated lengthwise of the plot to its north, for about the last twenty -four years prior to the institution of the suit, without interference by the Defendant.
The Defendant had a thatched house on his land some twelve cubits removed from the boundary of the Plaintiff's land, but, by making the new construction, he appears to have extended the construction further towards the south as to obstruct the Plaintiff's right of easement. The Defendant denied the claim of the Plaintiff. He pleaded that the Plaintiff was not the owner of plot No. 1157, nor was she entitled to sue in respect of any right of easement. According to the Defendant, he had a thatched house standing on the self -same site, and the Plaintiff never enjoyed any right of easement, as asserted by her.

The present construction was merely on the old site. There were local inspections made by the trying Munsiff on two occasions of the site in question, and the memoranda of those local inspections have been preserved on the record. As a result of the construction by the, Defendant, the right to light and air in respect of four windows in the northern wall of the Plaintiff's house, appears to have been affected. The learned Munsiff, on a consideration of the materials, thought it would be reasonable to direct the Defendant to construct and complete the wall of his house on the south -western side at a distance of one cubit removed towards the north from the existing position of the Defendant's wall. On appeal by the Defendant, the learned Subordinate Judge has dismissed the suit.

The main reasons given by him for dismissing the suit are - that the Plaintiff had failed to establish that she was the owner of the house and, although, as an occupier, she may have been entitled to sue, but, since it does not appear that all the co -sharers or occupiers had been joined in the suit, the suit could not proceed in their absence. On merits also, the learned Subordinate Judge took the view that no case had been made out for a declaration of any right of easement in favour of the Defendant.

(3.)THE judgment under appeal has been assailed in respect of both the points under discussion.


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