KAMLESH KUMARI Vs. CHANDER MOHAN
LAWS(HPH)-1997-2-7
HIGH COURT OF HIMACHAL PRADESH
Decided on February 25,1997

KAMLESH KUMARI Appellant
VERSUS
CHANDER MOHAN Respondents

JUDGEMENT

P.K.PALLI,J. - (1.)THE suit filed by the Plaintiffs -Respondents was decreed by the learned trial Court and on appeal filed by the Defendants -Appellants, the learned first appellate Court has maintained the judgment and decree passed by the learned trial Court. The Defendants are in second appeal before this Court. Parties hereinafter in the judgment shall be referred to as the Plaintiffs and the Defendants.
(2.)THE Plaintiffs sought a decree of permanent prohibitory injunction as well as declaration that the Defendant No. 1 be restrained to construct a wall of his house which is behind the house of the Plaintiffs as well as the proforma Defendants It was pleaded that with the raising of the construction of the wall, the light and air coming to the house of the Plaintiffs shall be blocked. It was also said that the raising of the proposed construction cannot be made without cutting the backside and eaves of the Plaintiffs' house. The Varandah of the house of the Plaintiffs opens towards the backside of their house from where they enjoy the light, air and sun bath during winter season. According to the Plaintiffs, they enjoying this right for the last more than 100 years which has now ripened into easementary right and thus the decree prayed for by them.
The Defendant No. 1 contested the suit Raised the plea of estoppel, Court -fee and denied that the Plaintiffs have any easementary right. According to the Defendants, the construction of the house was started wayback in the year, 1969 and the construction work of the second storey was taken up in March, 1983. There was earlier litigation between the father of the Plaintiffs and the Defendants which suit was withdrawn. According to the Defendants, the raising of the second storey would not infringe the rights of the Plaintiffs in respect of the light, air and sun bath. It was pleaded that the Defendant No. 1 has already left his own land toward the Plaintiffs measuring 1x22 feet.

(3.)THE learned trial Court on appreciation of the evidence placed on record by the parties held under issue No. 1 that the proposed construction would deprive the rights of the Plaintiffs being used by them in respect of the enjoyment of the property i.e. sun bath, air and light and the injury cannot be compensated by way of damages and there exists the right in favour of the Plaintiffs. On issue No. 2. it was found that the Defendant No. 1 has closed the abovesaid right of air and light to the Varandah of the Plaintiffs by raising a wall of his newly constructed house Consequently, a decree of injunction was passed in favour of the Plaintiffs and the proforma Defendants and against the Defendant No. 1 restraining him from raising further construction on the wall of his house adjoining to the house owned and possessed by the Plaintiff and the proforma Defendants. As the Plaintiffs had not specifically sought a declaratoy decree for the purpose of easementary rights, the relief in this respect was declined The appeal filed by the Defendant No. 1 stands dismissed by the learned first appellate Court.


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