This is an appeal by the plaintiff who instituted the suit for declara­tion of her right of easement of light and air over the adjoining land of the defendant, and also for a mandatory injunction preventing the defendant from completing the construction of his house in such a way as to cause obstruction to her rights. During the pendency of the suit, a temporary injunction was granted to the plaintiff directing the defendants to stop construction altogether. But this order has been modified and the defendant No. 1, Ali Akbar was allowed to complete the construc­tion of the house by shifting the wall on the south-western side to a distance of one cubit further towards the north. (2) The plaintiff claims to be the owner and occupier of dag No. 1157, which has an area of 4 kathas, 1 lecha. This dag lies conti­guous south of the defendant's land covered by dag No. 1158. The plaintiff claimed that she had been enjoying free air and light com­ing through the defendant's land to her house, which is situated lengthwise of the plot to its north, for about the last twenty-four years prior to the institution of the suit, without interfer­ence by the defendant. The defendant had a thatched house on his land some twelve cubits removed from the boundary of the plaintiff's land, but, by making the new construction, he appears to have extended the construction further to­wards the south as to obstruct the plaintiffs right of easement. The defendant denied the claim of the plaintiff. He pleaded that the plaintiff was not the owner of plot No. 1157, nor was she entitled to sue in respect of any right of easement. According to the defen­dant, he had a thatched house standing on the self-same site, and the plaintiff never enjoy­ed any right of easement, as asserted by her. (3) The present construction was merely on the old site. There were local inspections made by the trying Munsiff on two occasions of the site in question, and the memoranda of those local inspections have been preserved on the record. As a result of the construction by the defendant, the right to light and air in res­pect of four windows in the northern wall of the plaintiff's house, appears to have been affected. As a result of the construction by the defendant, the right to light and air in res­pect of four windows in the northern wall of the plaintiff's house, appears to have been affected. The learned Munsiff, on a consideration of the materials, thought it would be reason­able to direct the defendant to construct and complete the wall of his house on the south­western side at a distance of one cubit remov­ed towards the north from the existing posi­tion of the defendant's wall. On appeal by the defendant, the learned Subordinate Judge has dismissed the suit. The main reasons given by him for dis­missing the suit are - that the plaintiff had tailed to establish that she was the owner of the house and, although, as an occupier, she may have been entitled to sue, but, since it does not appear that all the co-sharers or oc­cupiers had been joined in the suit, the suit could not proceed in their absence. On merits also, the learned Subordinate Judge took the view that no case had been made out for a declaration of any right of casement in favour of the defendant. (4) The judgment under appeal has been assailed in respect of both the points under discussion. (5) It is true that the plaintiff had failed to show that she was the owner of the domi­nant tenement, yet, as an occupier of the house in question and, in particular, of the rooms to which obstruction is alleged, there can be no doubt that the plaintiff was entitled to sue. The learned Subordinate Judge does not dis­pute the position, but he thinks that all the owners and occupiers of the house in ques­tion should have been made parties to the suit. Even assuming that the other owners are not parties to the suit, it cannot be dismissed on that ground alone. They may be proper parties to the suit, but there is nothing to show that; they were necessary parties, so that the suit would fail in their absence. The plain­tiff, who is vitally affected by the construction, is entitled to claim the enforcement of her rights to light & air, through those apertures in-the house, as claimed by her. I am, therefore, not satisfied that the learned Subordinate Judge was right in dismissing the suit on that ground. The plain­tiff, who is vitally affected by the construction, is entitled to claim the enforcement of her rights to light & air, through those apertures in-the house, as claimed by her. I am, therefore, not satisfied that the learned Subordinate Judge was right in dismissing the suit on that ground. (6) On the second question also, it appears to me that the finding of the learned Subordi­nate Judge is largely speculative and ignores some of the material facts which the trial Court took into account in giving the decree in favour of the plaintiff. In dealing with issue No. 3 the trial Court held that four windows of the plaintiff on the northern wall were affected1 and there was obstruction to light and air. The evidence showed that the defendant had his previous house on a part of the pre­sent 'bhitji', but his thatched house actually stood at a distance of ten to fifteen cubits away from the plaintiff's house, the northern wall of which forms the boundary of plaintiffs land. About the size of the constructions also, there is a good deal of difference between the one which was standing previously on the land of the defendant) and the construction which is now sought to be raised. The thatched house, as found by the learned Munsiff, was 21'xl2'x9' or 10' (height) whereas the present house of the defendant is 35'xl5'xl2' (height!). These facts go to show-that the present construction of the defendant is not exactly and entirely on the old 'bhiti' of the defendant. The learned Subordinate Judge has completely ignored these facts and pro­ceeded to rely merely upon the so-called ad­mission of plaintiffs witness No. 2 which, ac­cording to him, supported the assertion of the defendant that he had erected the new house on the old site of the thatched house. If he had considered the materials re­ferred to in the judgment of the learned Munsiff, he would have found that this was not actually so. Even in regard to the admission of the witness, he is not quite accurate and appears to have committed an error of record, because the witness simply stated that the de­fendant' had built his new house on a part of the old 'bhitf, which, of course, is also the case of the plaintiff. Even in regard to the admission of the witness, he is not quite accurate and appears to have committed an error of record, because the witness simply stated that the de­fendant' had built his new house on a part of the old 'bhitf, which, of course, is also the case of the plaintiff. The learned Subordinate Judge has given no reasons for disagreeing with the finding of the learned Munsiff that the construction would interfere with the easement right of light and air which the plaintiff had been admittedly enjoying through the windows in her house. He merely observes that a further removal of the south-western wall of) defendant's house. by one cubit to the north would not! very much improve the situation. But he fails to notice that the learned Munsiff gave some good reasons for holding that if the wall is so removed, the plaintiff would continue to have reasonable enjoyment of light and air through those windows, and, I do not see any force in the observation of the learned Subordinate Judge that if the order of the Court below was given effect to, it would not be possible to alter the situation without impairing the entire house of the defendant. This appears to be largely speculative. A con­sideration of the site map on the record would show that alteration of the entire house is not necessary in carrying out that direction. (7) I am also unable to appreciate the ob­servation of the learned Subordinate Judge that, in equity, the plaintiff was not entitled to any such declaration under section 56 of the Specific Relief Act, merely because some 20 or 24 years ago, the house occupied by the plaintiff was constructed on the entire site of the land. There was nothing wrong about this act of the plaintiff or the owner who constructed the house, specially when the house of the de­fendant, as it stood prior to the new construc­tion, was at a distance of ten or fifteen cubits removed, as shown by the learned Munsiff. The plaintiff, therefore, having uninter­ruptedly enjoyed this right of light and air for long over twenty years, has certainly acquired a right of easement which could not be taken away by the defendant by raising, any cons­truction which might seriously affect those rights. The plaintiff, therefore, having uninter­ruptedly enjoyed this right of light and air for long over twenty years, has certainly acquired a right of easement which could not be taken away by the defendant by raising, any cons­truction which might seriously affect those rights. The owner of a dominant: tenement who has acquired a prescriptive right to the use of light and air through certain defined apertures - in this case, the windows in the northern wall of the plaintiffs house, - can insist on the preservation of those rights to the extent that they may be reasonably re­quired for his or her comfortable occupation of the house in question, though he or she may not be entitled to the excessive use of such rights as he or she might have enjoyed in the past. It being found that the plaintiff's rights to enjoyment had been infringed, she was entitl­ed to sue for the enforcement of her rights under section 26 of the Limitation Act, when there was no other plea urged in bar of her enjoyment of those rights. As held in Rajanif Kanta Das v.^Nirmal Chadra Das, AIR 1945 Cal 438 (A) "the user of a building has no materiality whatsoever in cases of the easement of light and air. Even a tenement which is vacant and un­occupied for the statutory period of 20 years or over, can, during the same period of non-occupation, acquire easement rights over the servant tenement". The main point which had to the considered was whether the infringe­ment of the right of light and air amounted to an actionable nuisance so as to interfere with the comfortable occupation of the house of the plaintiff, having regard to the ordinary notions of mankind and the reasonable usages which that portion of the house may be cap­able of. (8) On behalf of the respondent, it has been urged that the finding of the learned Subordinate Judge that there was no satisfac­tory evidence that the action of the defendant was calculated to injure the health and safety of the inmates of the adjacent plaintiff's house, should be taken to be conclusive on the point. As I said, this part of the finding is altogether speculative and depends largely on the assump­tion that the defendant was building entirely on the old site, which would not obstruct in any way the right enjoyed by the plaintiff. As I said, this part of the finding is altogether speculative and depends largely on the assump­tion that the defendant was building entirely on the old site, which would not obstruct in any way the right enjoyed by the plaintiff. I have already given my reasons for holding that the finding cannot be sustained in view of the materials which are on the record and which were fully considered by the learned Munsiff. The learned counsel has further relied upon the decision in Sher Mahammad v. Mt. Mahbub Begum, AIR 1936 Lah 905 (B) in support of his contention that where an owner of a vacant site having full power to build a house thereon irrespective of any sources of light or air, does not build any house for 20 years, the enjoyment of the access and use of light and air by the openings to the adjacent house, cannot be said to be as of right, but simply permissive, and, therefore, there was no prescriptive right under section 26 of the Limi­tation Act. The decision, to some extent does lend sup­port to the contention of the learned counsel; but I regret I am not prepared to accept the pri­nciple for which it) has been cited. It is a decision on its own facts, because in that case, there was nothing to show that there was any domi­nant or servant tenement as such. The open site as well as the construction standing on the land were parts of the same holding, and later came to be divided between the co-sharers who were the heirs of the original owner, - one of them getting the open space for construction. In this case, there was a dominant tene­ment and the right to light and air had been uninterruptedly enjoyed by the holders of the dominant tenement for a period of twenty years as against the holders of the servient tene­ment. Such a right could be validly acquired under section 26 of the Limitation Act. (9) The appeal should, therefore, be allow­ed. The decree of the learned Subordinate Judge should be set aside and that of the trial Court restored; but, in the circumstances, I think the parties should bear their own costs of the litigation. H.G.P. Appeal allowed.