JUDGMENT 1. - This is a defendant's civil second appeal against whom the plaintiff's suit for injunction pertaining to some ejectments viz., air and light and discharge of roof-water was decreed by both the Courts below. 2. Plaintiff Jeet Mal instituted a suit for perpetual prohibitory injunction against the defendant in the Court of Munsif, Udaipur on October 11, 1966. The case set up by him is that the house described in para 1 of the plaint situate in Mohallah Meenapara in the city of Udaipur bearing Municipal number 33/67 is of his ownership and possession. It is a double storeyed house. Contiguous in the East of it is situate the open court-yard of the defendant's house. In a room of the ground-floor of the plaintiff's house, there are two ventilators described as 'Dumkash' which open in the defendant's court-yard. In a room of the first floor, there are one window, projection, one ventilator and one water spout. They all open in the defendant's side. There are two spouts on the roof of the first floor to discharge rain-water in the defendant's land. The plaintiff has been using these ventilators, projection and water spouts for more than forty years and has thus acquired a right over them by prescription. In August, 1966 the defendant constructed a Dhaliya in the open land of his house and covered it with tins. The covering by tins resulted in the closure of air and light which the plaintiff was getting through the two appartures situate in his room of the ground floor. It was further alleged that the defendant is intended to raise the first floor and thereby to close the other windows, ventilators and the water spouts. The reliefs claimed by the plaintiff were (1) he be allowed to get air and light through the two ventilators situate in the room of his ground floor by removing the obstructions caused by the defendant and (2) the defendant be restrained by a perpetual prohibitory injunction not to interfere with his other easements relating to ventilators, windows projection and water spouts. The suit was contested by the defendant. He admitted the existence of his house and the house of the plaintiff. He also admitted the existence of the two ventilators (Dhumkash) windows and the water spouts. But he categorically denied that the plaintiff had acquired rights of easement to use these ventilators, water spouts etc. The suit was contested by the defendant. He admitted the existence of his house and the house of the plaintiff. He also admitted the existence of the two ventilators (Dhumkash) windows and the water spouts. But he categorically denied that the plaintiff had acquired rights of easement to use these ventilators, water spouts etc. According to him all these things were constructed by the plaintiff merely 15 years ago. It was further stated by him that the constructions made by him have not resulted in any damage or injury to the plaintiff. The case came for trial before the Additional Civil Judge, Udaipur. Three issues in all were framed. Both the parties adduced evidence during trial. On the conclusion of trial, the learned Additional Civil Judge partly decreed the suit. He directed the defendant to remove his construction in the width of 3" around the two ventilators situate in the room of the ground floor so as to allow the plaintiff to get air and light through them and further prohibited the defendant from causing any obstruction in the discharge of the rain water through the two spouts situate on the roof of the plaintiff's first floor. The suit in respect of other easements was dismissed. Dissatisfied with the above judgment and decree, the defendant went in appeal which was decided on April 4, 1976 by the learned District Judge, Udaipur. The defendant's appeal was dismissed in toto. The defendant has now come up in second appeal. 3. I have heard the learned counsel for the parties and gone through the case file carefully. 4. In assailing the judgment and decrees of the Courts below, the first contention raised by Mr. Shishodiya is that what the plaintiff alleged was that there were two Dhumkash in the room of his ground floor. It was argued that Dhumkash are meant for emitting smoke. They are not meant for the purpose of receiving air and light. As such the approach of both the Courts was erroneous. The contention is untenable. Both the Courts have concurrently held that though these two ventilators have been described as Dhumkash, they are virtually ventilators to get air and light through them. This concurrent finding cannot be now disturbed in this second appeal. As such the approach of both the Courts was erroneous. The contention is untenable. Both the Courts have concurrently held that though these two ventilators have been described as Dhumkash, they are virtually ventilators to get air and light through them. This concurrent finding cannot be now disturbed in this second appeal. Moreover, in his written statement the defendant never raised the plea that these two Dhumkash were meant for emitting the smoke and were not used for receiving the air and light. In absence of such an allegation, the contention now raised must be rejected. 5. It was next argued by Mr. Shishodiya that no case of substantial damage or injury was put forth by the plaintiff in this plaint. It was urged that the plaintiff can maintain the action only when he pleads that the obstruction caused by the defendant resulted in some substantial damage or injury to him. It was argued that pleading relating to easement must be specific and precise. Reliance in support of the contention was placed on Surendera Singh and others v. Firoz Khan and others, AIR 1953 Nagpur 205. My contention was also drawn into the provisions of Section 33 of the Easements Act, 1882 where under the dominant owner has to make out a case of substantial damage to him. 6. It is true that pleadings in a case dealing with easement have to be very precise and specific. In the instant case the plaintiff has clearly alleged a case of a special damage accruing to him by the defendant's raising the Dhaliya. In paras 4 and 5 of the plaint, it has been pleaded that due to the defendant's raising the Dhaliya and covering it with tins, the flow of air and light through the two ventilators in dispute has totally stopped and resulted in substantial damage to him. As such, I find no force in the contention that a case of substantial damage was not put forth or pleaded by the plaintiff. 7. It was next argued that the plaintiff has not been able to prove substantial damage caused due to the defendant's raising the Dhaliya and covering it by time. This contention cannot be allowed to be raised in this second appeal. Both the Courts have recorded concurrent finding that the defendant's raising the Dhaliya and covering it with tins has resulted in substantial damage to the plaintiff. This contention cannot be allowed to be raised in this second appeal. Both the Courts have recorded concurrent finding that the defendant's raising the Dhaliya and covering it with tins has resulted in substantial damage to the plaintiff. It has been further held that due to this construction by the defendant, the plaintiff's room has become dark. A finding of fact often though erroneous cannot be up-set in the second appeal unless adequate reasons are there to do so. Mr. Shishodiya could not advance any cogent and convincing reasons as to why this concurrent finding should be disturbed. It does not appear to be a case of mis-reading of evidence by the lower Courts. The contention, therefore, fails. 8. It was taken argued by Mr. Shishodiya that the plaintiff has not been able to establish that he was using those easements upto a time within two years next before the institution of the suit. It was argued that as such a necessary requirement of Section 15 of the Easements Act remained unfulfiled. This contention, again, is wholly untenable. The defendant did not raise such a plea in his written statement. Both the Courts below have held that the plaintiff has acquired the rights of easements by prescription which includes that the easements were enjoyed by him within two years proceeding the institution of the suit. In the plaint itself, it has been mentioned in para 8 that the defendant raised the Dhaliya on August 28, 1966. This fact was not controverted by the defendant in the written statement. I find no substance in the contention that the plaintiff has not been able to allege and prove that he enjoyed the easements upto the period of within two years next before the institution of the suit. The contention thus fails. 9. The last and the most formidable contention raised by Mr. Shishodiya is that the Courts below crept into an error in decreeing the suit in respect of the discharge of the rainy water through the two spouts situate on the roof of the first floor. It was argued that according to the evidence of both the parties, the house of the plaintiff was at one time one storeyed and the roof of the house was of the country tiles. The rainy water of that roof dropped on the defendant's land through the eaves. It was argued that according to the evidence of both the parties, the house of the plaintiff was at one time one storeyed and the roof of the house was of the country tiles. The rainy water of that roof dropped on the defendant's land through the eaves. Subsequently, before 15 years this house was reconstructed and was converted into a Pakka-house. This alteration by converting the tiled roof into that Pakka one and the increase in its height from one storey to the other has increased the burden of the discharge of the water on the servient heritage of the defendant. The plaintiff is, therefore, not entitled to any relief as he has made permanent change in the heritage and thereby has materially increased the burden on servient heritage. It was argued that by doing so, the easement hither to be enjoyed by him plaintiff stands extinguished. Reliance in support of the contention was placed on Section 43 of the Easements Act and Baktawar Mal v. Brij Mohan, AIR 1960 Rajasthan 236. 10. Mr. Mehta, learned counsel appearing for the plaintiff-respondent controverting these contentions submitted that according to the finding recorded by the lower appellate Court the burden has not materially increased on the servient heritage. This finding in the absence of adequate reasons should not be disturbed. The contentions raised by the parties require the matter to be dealt with at some length. 11. Section 22 of the Easement act contains an important provision that the dominant owner should exercise his right of easement in a mode of lease onerous to the servient owner. The reason is that the law does not favour restrictions on rights of property and the easements put such a restriction on such rights. The law, therefore, casts a duty on the dominant owner to exercise the right of easement in a manner which is least burdensome to the servient heritage. Section 23 of the Act speaks of the right of the dominant owner to alter the mode of enjoyment of easement.It gives a right to him to alter the mode of easement provided that he does not thereby impose any additional burden on the servient heritage. Section 23 of the Act speaks of the right of the dominant owner to alter the mode of enjoyment of easement.It gives a right to him to alter the mode of easement provided that he does not thereby impose any additional burden on the servient heritage. Whether the alteration made by the dominant owner is greater than what was hither to be enjoyed is a question of fact to be determined in each case from the nature of the right and circumstances of the case. Then, Section 29 of the Act speaks about the scope and extent of the use of easement. It lays down that the dominant owner cannot, by altering or adding to his heritage, substantially increase the easement. Section 31 of the Act provides a private remedy to the servient owner to obstruct the easement in case of excessive user. It arms the servient owner with an important weapon and provides him a remedy of self help. It empowers him to obstruct the user of the easement in case where there is excessive user of easement. Chapter V of the Act relates to extinction etc. of the easements. Section 43 appearing in this Chapter lays down that where the burden on the servient heritage is materially increased by any permanent change in the dominant heritage, the easement can be extinguished. 12. A combined reading of all these sections boils down the position to this that the dominant owner must exercise his right in the mode which is least onerous to the servient owner. He can alter the mode and place of the enjoyment of his right, provided that he does not thereby impose any additional burden on the servient heritage. If he acts in excess of his right, the servient owner can obstruct such excessive user. If the permanent change in the dominant heritage has resulted in materially increasing the burden on the servient heritage, the easement will come to an end. When Sections 23 and 43 of the Act are read together, they lead to the conclusion that the enjoyment of the easement can be extinguished only when the permanent alteration in the dominant heritage has resulted in extra burden on the servient heritage. 13. When Sections 23 and 43 of the Act are read together, they lead to the conclusion that the enjoyment of the easement can be extinguished only when the permanent alteration in the dominant heritage has resulted in extra burden on the servient heritage. 13. It is true that in the instant case, according to the learned District Judge who decided the first appeal the house of the plaintiff was one storeyed with a titled roof over it and the rainy water of the tiled roof used to fall through the eaves in the defendant's land. It was not converted into a Pakka one nearly 15 years ago before the institution of the suit. The learned District Judge has held that the rain water of the plaintiff's roof now falls through the two spouts on the defendant's land. He has held that it has not materially increased the burden on the servient heritage. The rains water first used to fall through the eaves and now it falls through the two spouts. This finding of the fact recorded by the first appellate Court does not appear perverse and requires no modification. 14. There are certain hurdles in the way of the defendant in accepting his contention relating to the increase of the burden on the servient heritage. The unfortunate aspect for the defendant is that in his written statement he has nowhere pleaded that the permanent change in the dominant heritage by converting them from Kaccha to Pakka, the burden on the servient heritage has materially increased. In absence of such an objection being taken in the written statement, it is difficult for this Court sitting in second appeal to allow the defendant to raise it now. After all, as stated above, whether the alteration is greater than what was here-before and the permanent change in the dominant heritage has materially increased the burden on the servient heritage is a question of fact. Like all other facts it should be pleaded and proved. The defendant has not pleased it. In absence of pleading, no notice can be taken of such a plea now raised in the second appeal. Not only so, defendant Kunjbihari (D.W. 1) in change in the plaintiffs heritage has materially increased burden on him servient heritage. 15. In Baktawar Mal's case (supra), the facts were entirely different. The defendant has not pleased it. In absence of pleading, no notice can be taken of such a plea now raised in the second appeal. Not only so, defendant Kunjbihari (D.W. 1) in change in the plaintiffs heritage has materially increased burden on him servient heritage. 15. In Baktawar Mal's case (supra), the facts were entirely different. On the peculiar facts arising in that case it was held that the dominant tenament's re-construction had increased the burden on the servient tenements. The easement was, therefore, taken as extinguished. Here in the instant case, there is no evidence to show for there is any plea in the written statement that the re-construction of the dominant heritage has increased burden on the servient heritage. 16. The matter is simple as regards the two water spouts situate on the roof of the plaintiff's first floor. Formerly, the water used to fall through eaves of the titled roof. Now, it is discharged through the water spouts. Formerly the rain water of the plaintiff's heritage used to fall and now also the rain water is discharged through the two water spouts. As such, the quantity of water falling on the defendant's land remains the same. It does not, therefore, increase the burden on the defendant's tenements. A similar situation arose in Keshav Lal v. Kanhaiya Lal, 1958 R.L.W. 628. It was held that when the amount of flow of water is the same, it does not materially increase the burden on the servient heritage even when the water started flowing from second storey in place of the first storey. The contention raised on behalf of the defendant that the plaintiff's easement of discharging rain water through the two water spouts has been extinguished does not go down well. 17. For the reasons stated above, I find no force in this appeal of the defendant and dismiss it with costs.Appeal dismissed. *******