- (1.) This appeal has been filed by defendant against judgment and decree passed by learned Additional District Judge, Jhalawar, dated 01.06.1991, confirming judgment of learned Munsiff, Jhalawar, dated 05.08.1982 whereby suit filed by plaintiff-respondent was decreed.
(2.) In order to appreciate the controversy, the factual matrix of the case may be noticed. The plaintiff-respondent filed a suit for permanent injunction against defendant-appellant in the court of Munsiff, Jhalawar, pleading therein that the room on the rear ground floor of his house measuring 9' x 9.6' had two ventilators and one window towards the southern side, which were in existence for last over 100 years. On the first floor room also there was a spout opening towards south. The ground floor room had a gate of the size 4.5'x12.6' opening in central chowk of plaintiff's house. The open land measuring 46.8'x4.6' towards south of the aforesaid ground floor room was owned by the plaintiff. The defendant had constructed a wall and thereby closed the two ventilators and one window of the ground floor room and spout of the first floor room. The defendant has thus violated his easementary right of air, light and draining of water, which he was enjoying as easement for the last about 100 years. Due to illegal construction raised by the defendant, house of the plaintiff has been damaged inasmuch as spout and cornice have been pulled down and roof of the room has become shaky. Prayer was made that the construction already raised be removed so as to ensure restoration of plaintiff's easementary right to light, air and drainage of water and an amount of Rs.639/- was also claimed as damages.
(3.) Learned trial court framed as many as ten issues. Issues no.1 and 2 were relating to easementary rights of the ventilators and window and spout respectively. Issues no.3 and 4 were regarding their closure and damages respectively. Issue no.5 was to the effect whether the defendant, by aforementioned action, has infringed easementary rights of the plaintiff.;