N. C. SHARMA, J. - (1.) THIS judgment will decide Civil Second Appeal No. 284 of 1976 filed by the legal representatives of original defendants, Civil Second Appeal No. 315 of 1976 filed by Sohan Lal plaintiff and Civil Execution Second Appeal No. 2 of 1977 filed by the legal representatives of defendants-judgment-debtors together as they arise from the same Civil Original Suit No. 42 of 1967 instituted by Sohanlal plaintiff in the court of the Munsif, Nathdwara.
(2.) FACTS leading to these three second appeals are that on February 13, 1967 Sohan Lal plaintiff instituted Civil Original Suit No. 42 of 1967 against Manohar Lal defendant (since having died) with the averments that the plaintiff owned and possessed a three- stored house situated in mohalla Nai Haveli in the town of Nathdwara. The agricultural land of defendant Manohar Lal was immediately adjoining the northern wall of the plaintiff's aforesaid house. There were three ancient windows, one 'teer kas' and two spouts in the first storey, four ancient windows and four spouts in the second storey and four ancient windows and five spouts in the third storey in the northern wall of the plaintiff's aforesaid house through which the plaintiff had been peacefully and without interruption enjoying the right of receiving light and air to his house and the right of discharging water on the field of the defendant from his house for quite a long time. It was alleged that the defendant had no legal right to construct a residential house on the agricultural land till it was converted for non-agricultural use and without obtaining the requisite permission. Despite that the defendant had just started constructing a house on his agricultural land and immediately adjoining the northern wall of the plaintiff's house which 'would result in the closure of the windows and spouts in the northern wall and the plaintiff would be deprived of their. use for ever. The defendant was asked to construct his house after leaving a space of four to six feet wide but he paid no heed to the plaintiff's request. The plaintiff, therefore, instituted the above suit praying for a decree of permanent injunction restraining the defendant from constructing his house just adjoining the northern wall of the plaintiff's house and in case the defendant wanted to construct a house, he should be required to do so after leaving four to six feet wide space from the said northern wall. Manohar Lal defendant filed a written statement on March 30, 1967 in which he pleaded that the plaintiff had only started constructing his three-storeyed house in the year 1966 and which he had only just completed. It was stated that the defendant and his mother Mst. Lahar Bai had their agricultural land towards the north of the plaintiff's house but its Khatedari tenant was his father Fatehlal. The defendant denied that there were any window or other openings in the first storey of the plaintiff's house opening towards north. The plaintiff had only kept a small new window and a spout in second storey and another small new window and a spout in the third storey of his house in the year 1966-1967 and he was neither enjoying light and air and nor discharging water therefore since a long time. The defendant had a right to tether his cattle and to stack firewood, grass and agricultural produce on his agricultural land and even otherwise only revenue courts could decide the matter even if the defendant did not possess such rights over his agricultural land. The defendant has intended to construct a house on his old five feet high Chabutra in order to tether bis cattle and to stack agricultural produce and implements and which would no doubt close the two windows and two spouts of the plaintiff's house through which the plaintiff had acquired no elementary rights. The plaintiff had obtained permission from the Municipality to construct two storeys in his house in the year 1965 only and be started constructing the second storey of his house in 1966 and the third storey in the year 1967 and he has kept the two new windows and two new spouts therein recently. Since the defendant had taken a plea in the written statement that his father Fatehlal and his mother Mst. Lehar Bai were also concerned with the agricultural land, they, along with Tehsildar Nathdwara, were also impleaded as defendants in the suit. The trial court framed four issues in the suit. After trial of the suit, the trial court held that the house which the plaintiff had purchased in July, 1961 from Kajor Nagarchi was in a dilapidated condition and that after purchasing the house, the plaintiff had constructed new house. It was held that when the plaintiff purchased the house from Kajor Nagarchi, there was only an ole 'pol' and a room over the 'pol' and rest of the portion of the house had fallen down. Rest of the house had been newly constructed by the plaintiff. In the old room over the old 'pol', there were only one window and one spout opening towards north i. e. towards the agricultural land of the defendants. This old room over the old 'pol' was used by Kajor Nagarchi. Rest of the windows and spouts were only new openings which were left by the plaintiff when he constructed the new house and as such the plaintiff had acquired no elementary rights of light and air or draining the water from them towards north of his house. It was held that the plaintiff had acquired elementary rights only in respect of the old window and old spout in the room over the old 'pol' which he did not disturb while newly constructing the house purchased by him from Kajor Nagarchi. The trial court also held that the plaintiff would sustain injury in case the old window and spout in the northern wall of the old room over the old 'pol' is closed by the defendant by raising a wall while constructing his house. The trial court was of view that the defendant will have to leave a three feet wide space just in front of this one old window and one spout and will have to keep this space open from upwards or from western side so that the plaintiff may enjoy his elementary right of light and air to and of draining the water from the room over the 'pol'. It was also held by the trial court that the land of the defendants was an agricultural land and no permission had been obtained by them for converting the same for non-agricultural use. In any event, if the defendants, after getting the land converted, would construct a house on their land, they would keep the open space in front of one window and one spout of the room over the 'pol' of the plaintiff's house as aforesaid. The trial court accordingly partly decreed the plaintiff's suit for permanent injunction against the defendants on November 15, 1971. Rest of the suit of the plaintiff was dismissed. Both the plaintiff and defendant Manoharlal respectively filed Civil First Appeals Nos. 67 of 1971 and 1 of 1972 respectively against the decree passed by Munsif, Nathdwara. The Additional Civil Judge, Udaipur, concurring with the findings of the trial court on all the issues, dismissed both these first appeals on July 21, 1976. It may be stated that Fatehlal defendant No. 2 had died during the pendency of the first appeals and his legal representatives were substituted. Manoharlal and Lehari Bai defendants No. 1 & 3 have also expired. Legal representatives of Manoharlal and Lehari Bai and two of the legal representatives of Fatehlal defendant No. 2 have filed the present Civil Second Appeal No. 284 of 1976 against the decree of the Additional Civil Judge, Udaipur. Sohanlal plaintiff ha? also filed Civil Second Appeal No. 315 of 1976 against the same decree. So far as Civil Executive Second Appeal No, 2 of 1977 is concerned, it had been filed by Manoharlal defendant (since dead and substituted by his legal representatives) against the order of Additional Civil Judge, Udaipur dated July 21, 1976 dismissing his appeal against the order of Munsif, Nathdwara passed in Execution Case No. 82 of 1971 directing the defendants to remove the constructions made by them in violation of the decree for permanent injunction passed in Civil Suit No. 42 of 1967 within fifteen days and to comply with the decree and on failure to do so, ordering for the sending of the defendant-judgment-dedtors to Civil jail for six weeks each. So far as the plaintiff Sohanlal is concerned, he is aggrieved from the decree passed by the courts below for the reason that despite clear findings that the plaintiff had a subsisting right of easement of light and air through the window and the right of easement to discharge water through the spout in the room over the Pol, the courts have not granted adequate relief to the plaintiff. His contention is that closure of the 3 feet wide space directed to be kept by the decree from above by the defendants will stop the light and air coming to the windows and the closure of the said space on its western side will stop flow of water from the spout. It is pleaded that the courts below ought to have restrained the defendants from raising any construction in the the three feet wide space on the north of the plaintiff's house. It is also pleaded that the defendants ought to have been directed to leave the space so that the plaintiff may receive the light at the angle of at least 45 degrees i. e. a space 6 or 7 feet wide instead of only 3 feet.
(3.) SO, far as the defendants, who have filed Civil Second Appeal No. 284 of 1976, are concerned they have contended in the appeal that the plaintiff had neither pleaded nor proved that he or his predecessor-entitle had enjoyed the right of light and air and the right to drain the water through the spout as an easement, openly, peaceably and continuously for a period of twenty years ending within two years next before the filing of the suit and that by the apprehended infringement, he would suffer substantial damage. It is contended that if in a suit for permanent injunction, substantial damage is not pleaded, the plaint does not disclose a cause of action and is to be rejected. In Civil Execution Second Appeal No. 2 of 1977, the contention of the defendants-judgment-debtors is that the executing court has mis constructed and mis-interpreted the decree passed in Civil Suit No. 42 of 1967 and that they have, while constructing the house, not violated the decree for permanent injunction in as much as they have left 37 inches space vacant in front of the window and the spout and have also left this space open from its western side and have thus complied with the decree. It may be stated at the very outset that we are concerned in these appeals only with one window and one spout in the northern wall of the room in first floor over the 'poli' of the plaintiff's house. The plaintiff has not filed civil Second Appeal No. 315 of 1976 for challenging the dismissal of his suit by the courts below with respect to the other windows and spouts mentioned in his plaint. ;