KUNJ BEHARI ACHARYA Vs. JEET MAL
HIGH COURT OF RAJASTHAN
Kunj Behari Acharya
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(1.)THIS is a defendant's civil second appeal against whom the plaintiff's suit for injunction pertaining to some ejectments viz., air and light and discharge of roof-water was decreed by both the Courts below.
(2.)PLAINTIFF Jeet Mal instituted a suit for perpetual prohibitory injunction against the defendant in the Court of Munsif, Udaipur on October 11, 1966. The case set up by him is that the house described in para 1 of the plaint situate in Mohallah Meenapara in the city of Udaipur bearing Municipal number 33/67 is of his ownership and possession. It is a double storyed house. Contiguous in the East of it is situate the open court-yard of the defendant's house. In a room of the ground-floor of the plaintiff's house, there are two ventilators described as 'Dumkash' which open in the defendant's court-yard. In a room of the first floor, there are one window, projection, one ventilator and one water spout. They all open in the defendant's side. There are two spouts on the roof of the first floor to discharge rain-water in the defendant's land. The plaintiff has been using these ventilators, projection and water spouts for more than forty years and has thus acquired a right over them by prescription. In August, 1966 the defendant constructed a Dhaliya in the open land of his house and covered it with tins. The covering by tins resulted in the closure of air and light which the plaintiff was getting through the two appartures situate in his room of the ground floor. It was further alleged that the defendant is intended to raise the first floor and thereby to close the other windows, ventilators and the water spouts. The reliefs claimed by the plaintiff were (1) he be allowed to get air and light through the two ventilators situate in the room of his ground floor by removing the obstructions caused by the defendant and (2) the defendant be restrained by a perpetual prohibitory injunction not to interfere with his other easements relating to ventilators, windows projection and water spouts. The suit was contested by the defendant. He admitted the existence of his house and the house of the plaintiff. He also admitted the existence of the two ventilators (Dhumkash) windows and the water spouts. But he categorically denied that the plaintiff had acquired rights of easement to use these ventilators, water spouts etc. According to him all these things were constructed by the plaintiff merely 15 years ago. It was further stated by him that the constructions made by him have not resulted in any damage or injury to the plaintiff. The case came for trial before the Additional Civil Judge, Udaipur. Three issues in all were framed. Both the parties adduced evidence during trial. On the conclusion of trial, the learned Additional Civil Judge partly decreed the suit. He directed the defendant to remove his construction in the width of 3" around the two ventilators situate in the room of the ground floor so as to allow the plaintiff to get air and light through them and further prohibited the defendant from causing any obstruction in the discharge of the rain water through the two spouts situate on the roof of the plaintiff's first floor. The suit in respect of other easements was dismissed. Dissatisfied with the above judgment and decree, the defendant went in appeal which was decided on April 4, 1976 by the learned District Judge, Udaipur. The defendant's appeal was dismissed in toto. The defendant has now come up in second appeal.
I have heard the learned counsel for the parties and gone through the case file carefully.
(3.)IN assailing the judgment and decrees of the Courts below, the first contention raised by Mr. Shishodiya is that what the plaintiff alleged was that there were two Dhumkash in the room of his ground floor. It was argued that Dhumkash are meant for emitting smoke. They are not meant for the purpose of receiving air and light. As such the approach of both the Courts was erroneous. The contention is untenable. Both the Courts have concurrently held that though these two ventilators have been described as Dhumkash, they are virtually ventilators to get air and light through them. This concurrent finding cannot be now disturbed in this second appeal. Moreover, in his written statement the defendant never raised the plea that these two Dhumkash were meant for emitting the smoke and were not used for receiving the air and light. In absence of such an allegation, the contention now raised must be rejected.
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