N.K.KAPOOR, J. - (1.) THIS is unsuccessful plaintiffs regular Second Appeal.
(2.) PLAINTIFF filed a suit for permanent injunction restraining the defendant from closing window 'a' and Ventilator 'v' as described in the head note of the plaint by raising a wall in front of the said window 'a' and Ventilator 'v' are in the northern wall of the first floor and ground floor respectively of the shop of the plaintiff for the last 50 years. Since the defendant is bent upon closing the window and the ventilator from which the plaintiff is having air and light for the last more than 50 years continuously without any intervention from any one and has acquired right of easement by prescription, hence this suit. Defendant filed written statement. By way of preliminary objection, it has been stated that the site plan filed by the plaintiff is incorrect. Window 'a' shown in the site plan is, in fact, a door. Other ventilators and doors which exist in the eastern southern walls have not been shown in the site plan. On merit, it has been stated that northern wall of the property belonging to the plaintiff is joint of the plaintiff and the defendant. According to the defendant, property now owned by the plaintiff and the defendant was earlier owned by one person. At the time when both the properties were owned by one person, there was a door in the wall intervening the property of the plaintiff and the defendant. The shutters of the said door were opening towards the property of the defendant. There was also one step made up of wood by giving a support underneath it by placing a rafter in the wall in dispute which now the plaintiff has removed by cutting the rafter. It has further been pleaded that the purpose of the door has come to an end as the owners of the property had different purpose and thus there is no purpose for the plaintiff to go to the first floor of the property owned by the defendant. Plaintiffs right of easement was denied. It has also been stated that the right of easement of light and air can only be claimed if the property to which the light and air is received becomes uninhabitable. Otherwise also, there are ample other sources of light and air to the property of the plaintiff.
(3.) ON the pleadings of the parties, following issues were framed: (1) Whether the plaintiff is entitled to the right of easement of light and air, through window mark A and ventilator mark V as shown in the plan attached with the plaint ? OPP. (2) Whether the northern wall of the house of the plaintiff belongs exclusively to the plaintiff qua portion in which disputed window and ventilator are situated ? OPP. (3) Whether the window mark A is in fact a door and the site plan attached is incorrect ? If so, in what manner ? OPD. (4) Whether the plaintiff is estopped by his act and conduct from filing this suit ? OPD. (5) Whether stair case of the shop in dispute is joint of the parties ? OPD. (6) Whether the plaintiff is entitled to the injunction prayed for ? OPP. (7) Relief. ;