S.K.M.LODHA, J. - (1.) THIS is a plaintiff's second appeal against the judgment and decree of the District Judge, Merta, dated July 8, 1967 in a suit for demolition; of a latrine and perpetual prohibitory injunction. The facts leading to this appeal are these. There is a locality known as Nayanagar in the town of Deedwana. The plaintiff's house, the description of which was mentioned in para 1 of the plaint is situated in that locality in the town of Deedwana. Contiguous to it in the north was the house of one Usman, which has now been purchased by the defendant -respondent Plaintiff has submitted a plan Ex. 1 along with the plaint and these two houses belonging to the plaintiff and the defendant 'have been distinctly shown in it. The case of the plaintiff appellant is that the wall DB, is his exclusive and he is the sole owner in possession of it. There is two ventilators and a water spout in this wall. Towards north, of this wall, according to the plaintiff there was an open vacant lard which was owned and possessed by the State Government The defendant -respondent has no right whatsoever over that inland But he, however, constructed a latrine on it without the permission of the Municipal Board, Deedwana On, January 27, 1963. while constructing the latrine he made use of the plaintiff's wall DE The construction of the latrine resulted in the closure of the plaintiff's one window and half of the ventilator. He was deprived 6f the natural advantages arising out of the situation of this land in respect of air and light. It was also stated by the plaintiff that the construction of the latrine by the defendant has caused nuisance to him. He, therefore, prayed that a decree for mandatory injunction for demolition of the latrine and restraining the defendant by means of perpetual prohibitory injunction from making any sort of further construction over the land in future may be passed The land beneath the latrine has been shown by the letters GHEF in the plan Ex. 1.
(2.) THE defendant has contested the suit of the plaintiff on various grounds. He, however, admitted the location of the two houses belonging to the plaintiff and the defendant as averred by the plaintiff. The case of the defendant as disclosed in the written statement was that the plaintiff has not acquired any right of easement in respect of air and light through the windows or to make any complaint or grievance about their closure. As regard s the wall DE his case is that this wall is jointly owned and possessed by the parties and is not of the exclusive and sole ownership of the plaintiff, He has also stated that the latrine has not been constructed on the Government land but the land but the land below it is of his exclusive ownership and possession. The plaintiff submitted rejoinder to the written statement of the defendant. In the rejoinder he reiterated the stand taken by him in the plaint. He however, admitted that he claimed the right of air and light through the windows and ventilators on basis of natural advantages annexed with his land and not on the basis of easenment.
(3.) THE learned Munsif framed the following issues on April 18, 1963. 1. Whether the land marked by letters G H E F in the topography filed by the plaintiff is the Govt. (Khalsa) land? 2. Whether the wall marked by lettet DE in the topography filed by the plaintiff is of the plaintiff's exclusive ownership? And, whether the plaintiff has acquired a right of air and light through the window marked Zand ventilator marked Y situated in the said well? 3. Is the plaintiff entitled to prepetual prohibitory injunction as pleaded by him in planit? 4. What will be the relief? After trial the learned Munsif by his judgment dated January 18, 1965 decreed the plaintiff's suit against the defendant with costs with the direction that the defendant's latrine under dispute shall be demolished. The defendant was farther restrained from making any encroachment over the plaintiff's wall DE and from causing any interference with the right' of the plaintiff in respect of light arid air through the window Z and ventilator Y. The defendant was restrained 'from mating any construction on the land GHEF. ;