T.S. Misra, J. - (1.) Both these appeals have been filed by the Plaintiff from the judgment and decree passed by the Civil and Sessions Judge; Ghazipur in the two civil appeals Nos. 226 of 1962 and 266 of 1962, which arose out of suit No. 262 of 1961. The Plaintiff instituted that suit for demolition of a wall shown by letters DTA in the plaint map. According to him his western wall LAM had been in existence for more than twenty years and to the west of his house there was an open land owned by Gur Saran Ram and which was now held by the Defendants. The Plaintiff contended that there was a Roshandan at point X in his western wall LAM and he had acquired a prescriptive right to receive light and air through the same. As the Defendants had started constructing a wall DTA just adjacent to the Plaintiffs wall he apprehended that his Roshandan point X might be blocked. It was also alleged that the Defendants had interfered with his fight to discharge water through a particular (sic) and the Plaintiff claimed prescriptive right of easement in that behalf as well. It appears that during the pendency of the suit the Defendants' wall DTA was further raised to such a height that it covered the Roshandan at point X. The Plaintiff however, did not seek any amendment in the plaint for incorporating a relief for providing an opening in the Defendants' wall so that the Roshandan might not be blocked or for demolition of the wall to that extent leaving open the Roshandan of the Plaintiff. The suit was resisted by the Defendants on a variety of grounds.
(2.) The trial court passed a decree directing the Defendants to provide a reasonable opening in the disputed wall at point X and restrained the Defendants from interfering with the Plaintiff's right to discharge water from the eves of his house on their building and land. Against this decision both the Plaintiff and the Defendants filed separate appeals. The appellate court below, dismissed the appeal filed by the Plaintiff but partly allowed the appeal filed by the Defendants. It was decreed that the Defendants shall not be required to provide any opening in the disputed wall. The Plaintiff has now filed the two appeals against the said decision and the same are being disposed of by a common judgment.
(3.) Both the courts below have recorded a concurrent finding of fact that the Roshandan at point X in the Plaintiff's wall had been in existence for over twenty years and the Plaintiff had acquired right by prescription to receive light and air through that Roshandan. The appellate court below, however, held that it was neither pleaded nor found that the Plaintiff had suffered any substantial damage on account of the closure of the Roshandan due to the construction of the Defendants' aforesaid wall. It is true that there is no averment in the plaint that on account of the closure of the Roshandan the Plaintiff has been put to substantial damage. Second and Third Explanations to Sec. 33 of the Easements Act make it clear that no interference with the free passage of light and air is actionable unless such interference is of substantial character. It is thus clear that an injunction cannot be granted in the case of an actual interference unless there is an actionable interference with the easement within the meaning of Sec 33 of the Act. An injunction to restrain the disturbance of an easement cannot, therefore, be granted where substantial damage is not proved to have been caused. See Suraj Narain v/s. Kalyan Das : AIR 1929 All. 430 and Wali Mohammad v/s. Batuk, 1936 AWR 525. In the instant case the Plaintiff had not pleaded that any substantial damage had been caused to him because of the raising of the wall by the Defendants whereby his Roshandan was completely blocked. The appellate court below was, therefore, justified in holding that the interference with the Plaintiff's light and air on the facts of the case was not actionable.;