Jagan Nath v. Bhanwar Lal — 1958 DIGILAW 210 (RAJ)

Sharma, J.—This is an appeal by the defendants Jagan Nath and Shiv Charan against the appellate judgment and decree of the learned Senior Civil Judge, Udaipur dated the 8th of April, 1954. It arises out of a suit which was brought by the plaintiff respondent Bhanwarlal for demolition of a bath room and a tank alleged to have been constructed shortly before the suit, adjacent to the plaintiffs house. It was complained that by these constructions, the ventilator in the northern wall of the plaintiffs house through which light and air had been passing for more than twenty years before the suit, was obstructed and the light and air which used to pass through it, had ceased to pass. It was prayed that the said constructions be removed and a perpetual injunction be given restraining the defendant from making any constructions in future,which might obstruct the passage of light and air through the said ventilator. Complaint was also made about damage to the plaintiffs wall and chabutri by the construction of the said tank and it was prayed that the flow of the water be diverted towards the defendants own land. Certain reliefs were also sought for but I am not concerned with them in this appeal. 2. The defendant denied that there had been any ventilator in the northern wall for more than 20 years before the suit. It was alleged that the opening which has been alleged to be the ventilator in the plaint was made only a short time before the suit. It was further pleaded that no obstruction was caused to that opening either from the bathroom or the tank. Allegations about the damage to the plaintiffs wall and Chabutri by the water of the bathroom or the tank were also denied but as that part of the decree by which flow of water had been ordered to be diverted has not been challenged in this appeal, I need not say anything further about it. 3. Allegations about the damage to the plaintiffs wall and Chabutri by the water of the bathroom or the tank were also denied but as that part of the decree by which flow of water had been ordered to be diverted has not been challenged in this appeal, I need not say anything further about it. 3. Learned Munsiff, Udaipur City, who tried the suit found that the opening alleged to be a ventilator had not been proved to be more than 20 years old and that it has not been proved that it had been used for the passage of air and light into the room of which the northern wall was a part and that at any rate it was not proved that it existed within two years next before the suit. On this finding, learned Munsiff dismissed the plaintiffs suit as regards the removal of the constructions and the opening of the ventilator. He also dismissed the suit so far as the prayer for perpetual injuction was concerned. This judgment is of the 10th of November, 1953 and the learned Senior Civil Judge who heard the appeal, found that the ventilator in question had been in existence for more than 20 years before the suit and light and air had been passing through it for the enjoy ment of the room of which the northern wall in question was a part. He also found that the easement in question had been obstructed within two years next before the suit. He found that the plaintiff had a right for the passage of light and air through this ventilator and consequently he gave him a mandatory injunction calling upon the defendants to remove those portions of the tank and the bath-room, which obstructed the ventilator in question. He also gave a perpetual injunction restraining the defendant from making any constructions in front of the ventilator in question without leaving an angle of 45 degrees. This judgment of the learned Senior Civil Judge, as said above is dated the 8th of April, 1954. Against the said judgment and decree the defendants have come in appeal. 4. He also gave a perpetual injunction restraining the defendant from making any constructions in front of the ventilator in question without leaving an angle of 45 degrees. This judgment of the learned Senior Civil Judge, as said above is dated the 8th of April, 1954. Against the said judgment and decree the defendants have come in appeal. 4. Learned counsel took me through the evidence produced in the case and in view of the fact that the learned lower appellate court has not properly discussed the evidence produced by the parties, I have considered the entire evidence on the record, although ordinarily this Court is not entitled to go into the evidence on a question of fact. 5. From the reading of the evidence, I find that Bhanwarlal (P.W.7), who is the plaintiff, has stated that the opening in dispute had been seen by him since Smt, 1970 and that it had been closed only 10 or 12 months before the suit by the construction of a bathroom and the tank. It also comes out in his evidence that since Smt. 2000, he has himself been occupying this house and that it had come to him from his brother Ambalal who died without an issue. He has said that air and light as well as smoke used to pass through this opening. The evidence of Bahutlal (P.W.5) is to the effect that he had occupied this house from the year Smt. 1991 to 1994 and that at that times,the ventilator in dispute was existing. The evidence of Nani Bai (P.W.3) is to the effect that she had occupied the house of the plaintiff near about the year Smt. 1956, and when she was occupying this house, the opening in question was existing and air and light used to come through it. The evidence of Jagan Nath (P.W.2) is to the effect that he occupied the house of the plaintiff for about 15 years and that throughout that time, the ventilator in question had been existing and air and light used to pass through it. He has also stated that there is no other opening in the room for the passage of light and air. The evidence of Nani Bai (P.W.3) is also to the effect that there was no other opening in to the room for the passage of light and air. He has also stated that there is no other opening in the room for the passage of light and air. The evidence of Nani Bai (P.W.3) is also to the effect that there was no other opening in to the room for the passage of light and air. The evidence of Bhanwarlal also shows that because of the obstruction of this opening, the room in the northern wall of which this opening is existing has become dark. It has been argued by the learned counsel for the appellants that this evidence of the plaintiff is not sufficient to prove that the opening in question had existed continuously for more than 20 years before the suit and that air and light had been enjoyed through it continuously and without interruption for the said period and that air and light had been passing through it within two years next before the suit. It was argued that the evidence of Nani Bai and Jagan Nath was not of any use, because Jagan Nath has deposed about the existence of the opening in question only for 15 years and Nani Bai has deposed that she saw it when she occupied the house for a period prior to the period of 20 years next before the suit It was argued that Nani Bai and Jagan Nath had not executed and rent deed and therefore it could not be believed that they had ever occupied the house in question as tenants. As regards, the evidence of Bahutlal the same argument has been repeated that there is no documentary evidence to show that he had ever been the tenant of the house in question. Moreover,it was argued that his knowledge is only regarding the three years between Smt. 1991-94 and not regarding full 20 years before the suit. It was argued that the defendants evidence was much better than that of the plaintiff and the defendants witnesses have deposed that the tank and the bath room in dispute had been constructed about the year 1941, i.e. about 11. It was therefore proved from their evidence that the opening, if any, had been obstructed for more than two years next before the suit. It was therefore proved from their evidence that the opening, if any, had been obstructed for more than two years next before the suit. It was argued that the evidence of the defendant also showed that in fact there was no opening in the northern wall till about 10 or 12 months before the suit and it was opened only a short time before the suit. 6. I have considered the evidence of both the partes. It is true that Jagan Nath, Nani Bai and Bahut Lal have not produced any documentary evidence to show that they had been tenants of the house in dispute. But it is not necessary that there should be a rent deed in the case of every house which is let out to a tenant. Apart from the fact that no written evidence was produced learned counsel was not able to show why the evidence of these witnesses should no be believed. It is true that Nani Bai occupied the house much before 20 years next before the suit and if there would have been no evidence except that of hers, it would not have been possible to hold that the ventilator in question had been existing for more than 20 years next before the suit. Her evidence is, however, of value to show that this opening existed so far back as Smt. 1956 and reading this evidence with that of the plaintiff Bhanwarlal (P.W. 7), Jagan Nath (P.W.2) and Bahut Lal (P.W. 5) it comes out that the ventilator continued to exist even after Smt. 1956 Bahut Lal (P.W. 5) saw it from Smt 1991-94 and the light and air used to come through it during that period. This period of Smt. 1991-94, lies within 20 years next before the suit. The evidence of Jagan Nath shows that he saw this opening for the entire period of 15 years he occupied the house as a. tenant and that light and air used to be received through this ventilator during that time. It is true that he left the house about 20 years before his statement, which was recorded on the 17th of April, 1953. So his statement is of the value only so far as one or two years of the relevant period of 20 years is concerned. It is true that he left the house about 20 years before his statement, which was recorded on the 17th of April, 1953. So his statement is of the value only so far as one or two years of the relevant period of 20 years is concerned. But his evidence definitely shows that the opening was there at least till about 20 years before the suit. Reading all this evidence with the evidence of Bhanwarlal, who has stated that he had been seeing this opening since Smt. 1970 when this house belonged to his brother Ambalal and that since Smt 2000 he himself had been occupying the house, the conclusion becomes clear that this opening has been existing at least ever since the year 1956 when Mst. Nani Bai was occupying the house in question. I understood the learned counsel for the appellant to argue that in order to prove the right of easement by prescription, the dominant owner is bound to prove by direct evidence the existence of the easements for every day and every month of the 20 years period. Even if that were necessary, there is the evidence of Bhanwarlal to prove that he had been seeing this opening continuously since Smt. 1970. Learned counsel argued that it has not been proved that for the entire period of 20 years before the suit, the house in question had been occupied and light and air from the opening in question had been enjoyed for this entire period. His argument is that if the property in relation to which easement is claimed by prescription, is not occupied throughout the entire period of 20 yrs. and falls vacant at times during this period, continuous and uninterrupted user of the easement would not be proved. I find myself unable to accept this argument. It is not necessary that the owner of such property should be occupying for every day and every month during the relevant period of 20 years. He may at times go out. His family might also go out and the property might be left actually unoccupied. But it does not mean that the right of easement which had existed for more than 20 years becomes destroyed by virtue of the owner leaving it unoccupied at times. He may at times go out. His family might also go out and the property might be left actually unoccupied. But it does not mean that the right of easement which had existed for more than 20 years becomes destroyed by virtue of the owner leaving it unoccupied at times. It is also not necessary that in the absence of the owner, it should be occupied either by any tenant or by any servant or any other person on behalf of the owner. If that were so, easements acquired by prescription of hundreds of years might be destroyed simply because for a day or two or for a month or two, or a year or two, the property in relation to which easement is claimed, remained vacant. Shri C. M. Lodha on behalf of the respondents has referred to a ruling of Calcutta High Court in the case of Rajanikanta Das, on his death Gopal Sundari Dasi vs. Nirmal Chandra Das (1), in which it has been held that— "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 unocupied for the statutory period of 20 years or over can during the same period of non-occupation acquire easement rights over the servient tenement." Learned counsel has also referred to an English ruling in the case of Cooper vs. Straker (2). The law relating to perscriptive easement is the same in England as in India and it was held that— "The use of light has been "enjoyed" with a building within the meaning of sec. 3 of the Prescription Act, if the owner of the building has had the amenity or advantage of using the access of light. The law relating to perscriptive easement is the same in England as in India and it was held that— "The use of light has been "enjoyed" with a building within the meaning of sec. 3 of the Prescription Act, if the owner of the building has had the amenity or advantage of using the access of light. It is not necessary that there should have been a continuous user." It was observed that:— "If it be proved that the window-openings have remained unchanged for twenty years and that the shutters were constructed so that they might be opened or closed at the pleasure of the owner of the building the onus is thrown upon the owner of the neighbouring land to prove that the right has been acquired." Learned counsel for the appellants has not been able to show me any authority in support of his argument that the property in respect of which right of easement of light and air is claimed should have remained actually occupied for the entire period of 20years before the suit. His argument however, is that because from the evidence it was proved that the bath-room and the tank in question had been constructed about 10 or 11 years before the suit, the plaintiff could not acquire right of easement by prescription. It is true that under sec. 15 of the Easements Act, the relevant period of 20 years should be taken to be a period ending within two years next before the institution of the suit, wherein the claim to which such period relates is contested. If, therefore, there were satisfactory evidence to show that the obstruction had been caused since more than two years next before the suit, it could be said that the plaintiff had not acquired the right by prescription. But as has been said above, from the plaintiffs evidence, it is proved that the opening had existed for more than 20 years till within two years next before the suit, putting more accurately, according to the plaintiffs evidence, the obstruction complained of was made only a few months before the suit. There is no doubt that the defendant has produced some evidence to show that the bath-room and the tank were constructed in or about the year 1941. To this effect is the evidence of Yahiya Ali (DW. 1), Bhurilal (DW. 2), Banshilal (DW. 3), and Ghulam Ahmed (DW. There is no doubt that the defendant has produced some evidence to show that the bath-room and the tank were constructed in or about the year 1941. To this effect is the evidence of Yahiya Ali (DW. 1), Bhurilal (DW. 2), Banshilal (DW. 3), and Ghulam Ahmed (DW. 4), but the evidence of these witnesses is falsified by the evidence of the defendants witness Bhanwarlal (DW. 5), who has said that the bath-room and the tank in dispute had been seen by him only since 1948-49, although he had been frequently visiting the house of the defendant after 1945. It is true that so far as he could remember he had been seeing it since 1948-49, but if he had been seeing it before 1948-49 he could very well say that he had been seeing the bath-room and the tank ever since he began to visit the defendants, house after 1945. There is one other thing, which makes the story of the construction of the bath-room and the tank in question about 10 years before the suit highly improbable. The plaintiff has clearly said in his plaint that the bath-room and the tank only had been constructed shortly before the suit. If the defendants case were true, he would have said that it was wrong to say that the two constructions were put up only shortly before the suit but they were put up as far back as about 10 or 12 years before the suit. The defendant has however, failed to say anything like this in his written statement, and it appears that at the time of filing his written statement the defendant did not think it proper to put forward a case that the constructions in dispute had been put up 10 or 12 years before the suit, and it was at the time of the evidence that this necessity was felt. I have no reason to disbelieve the evidence of the plaintiff to effect that the constructions in dispute were put up only a few months before the suit and have no hesitation in rejecting the evidence of the defendants by which an attempt has been made to prove that these constructions were put up about 10 or 12 years before the suit. 7. The evidence of the defendants that the opening itself was made only 10 or 12 months before the suit is not believable. 7. The evidence of the defendants that the opening itself was made only 10 or 12 months before the suit is not believable. Their witness Bhurilal (D.W. 2) never went inside the house of the plaintiff. According to him the plaintiff had three houses. He did not know what easements existed in two of the plaintiffs houses. He had appeared as witness for the defendant in another suit of theirs also. Bansilal (D.W. 3) had deposed that he had been seeing the ventilator in question for about 12 or 13 years. The evidence of this witness falsifies the evidence of Bhurilal that this opening was made only 5 or 6 months before the suit. Similarly, it falsifies the evidence of Yahiya All in this respect. According to the evidence of Jagan Nath (D.W.6), the opening was made about two years before the suit. His evidence is against the evidence of Yahiya Ali, Bhurilal and Bansilal. The evidence of Ghulam Ali (D.W.4) falsifies the evidence of all the defendants witnesses and lends support to the evidence of the plaintiff as he had stated that he had been visiting the house of the defendants for about 25 or 30 years and that he had been seeing the opening in question since he had been visiting the defendants house. It is, therefore. perfectly clear that the evidence produced by the plaintiff that the opening in dispute had existed for much more than 20 years before the suit is perfectly correct. 8. Learned counsel for the appellants has argued that no substantial damage has been caused to the room of the plaintiff by the construction of the tank and the bathroom in dispute, and therefore the plaintiff could not claim right to have the ventilator opened. From the evidence of the plaintiff discussed above, it is quite clear that there is no ventilator in the room in question excepting the ventilator in dispute. Nothing has been brought out either in the cross-examination of the plaintiffs witnesses or in the evidence of the defendants witnesses to show that there are other means of receiving sufficient light and air in the room in question. From the evidence of the plaintiff, on account of the closing ventilator, the room has become dark. Nothing has been brought out either in the cross-examination of the plaintiffs witnesses or in the evidence of the defendants witnesses to show that there are other means of receiving sufficient light and air in the room in question. From the evidence of the plaintiff, on account of the closing ventilator, the room has become dark. There is nothing in the evidence of the defendants to show that no material alteration had been cause to the light and air of the room in question by the blocking of the opening. The rulings relied upon by the learned counsel for the appellants no doubt lay down the disturbance should have actually caused substantia) damage to the plaintiff. In the circumstances of this case, the disturbance has actually caused substantial damage to the plaintiff and the rulings relied upon by the learned counsel do not apply to the facts of this case. 9. There is yet another argument of the learned counsel for the appellants which has to be taken note of. It was argued that in fact neither the tank nor the bath room has obstructed the ventilator in question. From the evidence of the plaintiff, it comes out that these constructions have in fact obstructed the ventilator. The defendant do not say in their written statement that no obstruction had been caused to the passage of light and air by the construction of the bath room and the tank in question. Of course, it has been said that bath room has been constructed near the northern wall and the tank has been constructed at some distance but the defendant has discreetly not said that no obstruction has been caused to the light and air from the opening on account of the construction of the bath room or the tank. True it is that para 4 of the plaint in which allegations had been made about the construction has been denied in general, but it was the duty of the defendant to say it clearly that no obstruction has been caused to the passage of light and air by any of these two constructions. I have, therefore, no reason to disbelieve the evidence of the plaintiff that obstruction has been caused to the passage of light and air by these constructions. I have, therefore, no reason to disbelieve the evidence of the plaintiff that obstruction has been caused to the passage of light and air by these constructions. It may be that the obstruction has been caused by the bath room alone or partly by the bathroom and partly by the tank and it would be for the executing court to see that only that portion, be it either of the bath room or of the tank, which obstructs the passage of light and air from the ventilator in question, is removed. If no portion of the tank obstructs any portion of the opening, it will ofcourse be not removed. But, this is the question to be gone into by the execution court. Similarly, if only the tank has obstructed the passage of light through the opening and no portion of bath room has obstructed it, the execution court will see that only that construction is removed which actually obstructs the passage of light and air through the ventilator in question. 10. The appeal is partly allowed and the mandatory injuction for the removal of the obstruction from in front of the opening in dispute is maintained to this extent that only that portion of the bath room or the tank or both shall be removed which obstructs the passage of light and air through the opening in question. It will not be necessary to demolish the two constructions altogether if passage of light and air through the opening in dispute can be possible by the demolition of those portions only which have actually obstructed the passage of light and air. As regards the perpetual injunction, the defendant is restrained by perpetual injunction from making any construction within a distance of three feet from the northern wall of plaintiffs house in front of the ventilator in question, in case its height goes above the base of the ventilator in question. The plaintiff respondents shall get half the costs of this appeal from the defendant-respondent.