JUDGMENT 1. - This is defendant's second appeal arising out of a suit for injunction. The plaintiff respondent sold the house in question to the defendant-appellant by a registered sale deed dated 10th September, 1962. It may be mentioned here that the plaintiff's own residential house is situated towards the north of the house in dispute and admittedly there were 41 windows and Jails on the 3rd and 4th floors in the southern wall of the plaintiff's residential house over-looking the suit property. The plaintiff's case is that there was a clear agreement between the parties contained in the sale deed itself Exhibit-1, that the 41 windows etc. existing in the wall of his residential house would always remain open and the defendant would have the right to receive light and air through these openings as therefore. It was, however, urged that the defendant taking advantage of the absence of the plaintiff from Ajmer, where the property is situated, started raising construction in the fourth storey and that unless he was restrained, he would reduce the light and air coming through the window and other openings to such an extent that the plaintiff's house would become dark and unfit for human habitation. It was, therefore, prayed that a perpetual injunction may be issued against the defendant restraining him form constructing anything which may affect light and air coming through the said 41 windows, Jalis etc. A further prayer was made that any construction in violation of the agreement may be ordered to be demolished. The defendant denied the plaintiff's suit and pleaded that no window or Jali had been closed by the defendant nor plaintiff's room had been rendered unfit for human habitation. He also stated that the plaintiff has got a number of other windows and Jalis towards the east, west and north, through which he could get abundant light and air. 2. On the pleadings of the parties, the trial court framed the following issues:- 1. Whether there are 41 windows, Jalis and openings on the southern wall of the plaintiff's property and is the defendant liable to keep them open in terms of the sale deed executed by the plaintiff in his favour? 2. Whether the defendant is trying to close these openings by raising construction? 3. Whether the defendant has not closed any of the opening of the plaintiff's house? 4. 2. Whether the defendant is trying to close these openings by raising construction? 3. Whether the defendant has not closed any of the opening of the plaintiff's house? 4. Whether the plaintiff's property will become dark and unfit for human habitation by the closure of the openings? 5. Relief? 3. After recording the evidence produced by the parties the learned Munsiff (West) Ajmer city, by his judgement and decree dated 18th November, 1970 dismissed the plaintiff's suit. He decided issue No.1 in favour of the plaintiff and issue No. 2, 3 and 4 against the plaintiff. 4. Aggrieved by the judgement and decree by the trial court, the plaintiff filed appeal which was allowed by the Additional Civil Judge, Ajmer, by his judgement dated 2nd February,1974. He set aside the judgement and decree by the trial court & issued a perpetual injunction against the defendant restraining him from putting up any construction on the third floor of his property in such a way as to cause reduction of quantity of light & air which the plaintiff was receiving at the time of the sale of the property. He also issued a mandatory injunction ordering the demolition of the impugned construction. Dissatisfied with the judgement and decree by the learned Additional Civil Judge, Ajmer, the defendant has filed this appeal. 5. I have heard learned counsel for the parties at some length & I must point out that there has not been a proper trial of the suit. No plan has been put on the record so as to indicate either situation of the windows & other openings or the nature of the construction raised by the defendant. The plaintiff & the written statement are also equally vague. No doubt plaintiff has stated in P.N. 2 of the plaint that there are 41 openings in the southern wall of his residential house. But he has conveniently omitted to state as to against which windows and openings construction has been made by the defendant so as to cause obstruction of right and air coming through them. In the relief, clause even though the plaintiff had prayed that the construction already made may be ordered to be removed, yet strangely enough, he has not pointed out anywhere in the plaint as to what is that construction. The petition remains obscure even in the statements of the witnesses. In the relief, clause even though the plaintiff had prayed that the construction already made may be ordered to be removed, yet strangely enough, he has not pointed out anywhere in the plaint as to what is that construction. The petition remains obscure even in the statements of the witnesses. The plaintiff examined himself as PW/1 and did not produce further evidence and the defendant examined himself & produced one more witness DW/2 Noratanlal. All that the plaintiff has a stated in the examination-in-chief is that the openings in question are not in the same condition as they were at the time of the execution of the sale deed exhibit-1 and that the defendant had raised construction in front of them on account of which the light & air coming through those opening had been reduced. He has further stated that if the defendant completely closed the opening the light and air coming in to his house will be completely stopped. In the cross examination he has stated that construction had been raised in front of 23 openings big and small existing in the southern wall of his house. But later on he has admitted that only four window & four 'Men Khas' had been closed by the construction raised by the defendant. He has further stated that the wall has been constructed by the defendant in his own house at a distance of about five feet from the windows & in this wall the defendant had kept one of two Jalis. Then he has stated that there are three doors in the room but later on he corrected himself and stated that there are only two doors, one towards the east & the other towards the west & the door in the west opened in another room. Defendant DW/1 Ratan Lal has stated that he had not closed the window etc. of the plaintiff. However, this is admitted position of the parties that some openings existing in the plaintiff's house have been covered so that they open in a closed apartment built by the defendant in the house sold to him though the defendant's wall is at a distance of 5 to 7 feet from the windows and Jalis in question. 6. However, this is admitted position of the parties that some openings existing in the plaintiff's house have been covered so that they open in a closed apartment built by the defendant in the house sold to him though the defendant's wall is at a distance of 5 to 7 feet from the windows and Jalis in question. 6. On the record as it stands, I am constrained to observe, that neither from the pleadings nor from the evidence it is clear as to what construction has been raised by the defendant. It was the bounden duty of the plaintiff to have filed a proper plan and then to have proved with reference to that plain the impugned construction. 7. Apart from that a serious controversy has been raised before me as to the nature of the rights of the parties. The defendant-appellant's case is that the plaintiff having failed to prove substantial denomition of light and air through the windows and other openings in question cannot succeed as his right does not stand on a higher footing than that of an easement, and that any restriction placed on the right of the defendant to raise construction in the property sold to him is in the nature of restriction convent which cannot be enforced according to the first para of section 11 of the Transfer of Property act. In support of his contention learned counsel has relied upon Gar Prased Mukerji v. Bishanmal, AIR 1924 All 816 , Paul v. Robson, ILR 1942 Cal. 46 , Jamna Das v. Gulraj, AIR 1952 Raj. 101 . 8. On the other hand learned counsel for the respondent has strenuously urged that the respondent plaintiff's case is not governed by the law of Easement but it is a case of receiprocal promises and the defendant was bound by the terms of the sale deed so as not to arise any construction in violation of the same. 9. It is abundantly clear from the pleadings of the plaintiff that he has not relied upon right of easement though he has alleged in para No.4 of the plaint that the construction proposed to be raised by the defendant would make his premises unfit for human habitation. But this allegation in my opinion, cannot be so construed as to mean that the plaintiff's claim rests on the basis of easement. But this allegation in my opinion, cannot be so construed as to mean that the plaintiff's claim rests on the basis of easement. On the other hand a bare perusal of paras Nos. 3 & 5 of the plaint would show that the grievance of the plaintiff is that the defendant had raised and was still raising the construction in violation of the terms of the sale deed. The case, therefore, appears to be one of enforcement of the terms of agreement between the parties incorporated in the sale deed. The Allahabad case cited by the learned counsel for the appellant fortifies my view in this respect. In my opinion, decision of this case turns upon the interpretation of the agreement between the parties incorporated in the sale deed itself and the main point in the case is whether the construction raised by the defendant or which he proposes to raise is in violation of the agreement contained in Exhibit-1. Unfortunately the issues framed do not bring out this point of controversy in bold relief and that appears to be one reason why the parties have not been able to concentrate on this point even in the course of evidence. In this situation the only proper course to be adopted is to set aside the judgement and decrees of both the courts below and send the case to the trial court for fresh trial. I also deem it proper to frame an additional issue in the following terms:- "Whether the impugned construction raised by the defendant is in violation of the agreement between the parties contained in the sale deed, exhibit-1 and, if so, what is its effect?" As already stated above, the point on which I have framed this additional issue is the main point in the case on which the ultimate decision with regard to the rights of the parties hinges. 10. I also wish to point out that the pleadings are not at all clear on the point. The plaintiff is, therefore, directed to give all the relevant particulars in the plaint regarding he situation of the windows, the extent to which they have been according to him, obstructed. 10. I also wish to point out that the pleadings are not at all clear on the point. The plaintiff is, therefore, directed to give all the relevant particulars in the plaint regarding he situation of the windows, the extent to which they have been according to him, obstructed. The plaintiff will have, thereafter, an opportunity to give a reply to the plaintiff's case and then the parties will be given opportunity to lead evidence on the additional issue framed by me and after that the case will be decided afresh. 11. In the result, I allow this appeal in part, set aside, the judgements and decrees of the courts below and remand the case to the trial courts for proceedings to a fresh trial on the lines indicated above. In the circumstances, I make no order as to costs. *******