JUDGMENT D. P. Sood, J.—Through this regular second appeal under section 100 of the Code of Civil Procedure, 1908, the plaintiff-appellant seeks reversal of the judgment and decree dated 5-10-1982 which has affirmed the judgment and decree of the lower Court and directed the dismissal of the suit. 2. The bone of contention in between the parties is the prescriptive easementary right allegedly enjoyed by the plaintiff and his predecessors-in-interest over the property (vacant plot) belonging to contesting defendants. The plaintiff claimed to be the owner in possession of the building known as Brunswick House, The Mall, Shimla The aforesaid property was purchased by the plaintiffs and their father, Shri Nagina Singh and the latter bequeathed his share in favour of the former and thereby the plaintiffs claimed to have become owners in possession of the entire building. The building was three-storeyed at its inception The upper-most storey was having seven shops with their opening towards The Mall, while the two storeys were down below. The plaintiffs claimed the existance of windows, ventilators, down pipe and Hauzi for the last more than fifty years. 3. In this appeal, respondents Gurdial Singh and Gurbachan Singh (proforma respondents) were also plaintiffs alongwith Swaran Singh, appellant. Plaintiffs have put forth a claim to easementary rights for free access of light and air through the windows and ventilators detailed in the map (not proved) as detailed in the plaint. They have also claimed easementary right pertaining to the fixing of down pipe and flow of water from the Hauzi to the municipal Nullah. Their further assertion is that they had been receiving light and air from the aforesaid windows and ventilators for more than fifty years and they have acquired prescriptive easementary right thereto to the knowledge of the defendants. 4. Further assertion of the plaintiffs is that the aforesaid easement has been enjoyed by them as of. right for the last more than 28 years without any interruption and the said user now cannot be curtailed by the defendants attempt to raise construction on the vacant plot Plaintiffs aver that Shri Bhag Singh (defendant No i) purchased Albion Cottage on 1-10-1955 through a registered sale deed for Rs. 8,000. The vacant plot was also included therein Out of the said vacant area, defendant No. 1 gifted 60 sq. 8,000. The vacant plot was also included therein Out of the said vacant area, defendant No. 1 gifted 60 sq. yards in favour of defendant No 2, who as per the allegations of the plaintiffs had obtained the sanction of the Municipal Committee, Shimla (Now, Municipal Corporation, Shimla) for the construction of a three-storeyed building adjacent to the eastern wall of the plaintiffs aforesaid house. Plaintiffs over -That by the aforesaid construction the defendants have invaded and threatened to invade the plaintiffs rights of easement and, therefore, the suit for prohibitory injunction culminated. The relief by way of perpetual injunction has been sought to the effect that defendants be restrained from constructing the aforesaid three- storeyed building on their plot towards the eastern wall side of their building Burnswick House, The Mall, Shimla and they be restrained from interfering with the plaintiffs right to enjoy light, air, flow of water through the down pipe from the roof to the Hauzi and then into the Municipal Nullah. 5. Defendants resisted and contested the suit by raising various preliminary objections with respect to jurisdiction, non-joinder of parties and valuation for the purposes of Court fee. On merits, it was pleaded that though the windows, ventilators etc. as shown in the map annexed with the plaint were existing at the time of the institution of the suit, but the defendants specifically pleaded that there was do Hauzi present at the spot and in fact, it was constructed in February 1968 in the absence of the defendants. The presence of any drain underneath the plot connecting the flow of water from the Hauzi to municipal nullah has also been denied. Regarding the existance of apertures, it has been alleged that those were opened a year back. The existance of windows and ventilators as pleaded by the plaintiffs has also been denied. It was contended that the defendants purchased the site in dispute alongwith a constructed area from the custodian as the same was an evacuee property and no easement right could be acquired at the time when it remained evacuee property. For this reason defendants claim that the said property was acquired by the Central Government absolutely free from all encumbrances and it was sold to and vested in defendant No. 1 free from all encumbrances as absolute owner thereof since 1-10-1955. 6. For this reason defendants claim that the said property was acquired by the Central Government absolutely free from all encumbrances and it was sold to and vested in defendant No. 1 free from all encumbrances as absolute owner thereof since 1-10-1955. 6. In the replication, the plaintiffs reiterated the averments made in the plaint and controverted the contentions raised in the written statement. 7. On the pleadings of the parties, the trial Court framed various issues out of which issues No 2, 3, 7 and 8 are necessary to be detailed for the determination of the real controversy arising in between the parties, The said issues are in the following words : — Issue No. 2.—Whether the plaintiffs have acquired easementary rights with regard to windows, ventilators, down pipe, Hauzi (Break Pressure taken) drain open and underground as set out in paras 3 and 4 of the plaint ? OPP. Issue No. 3.—Whether the plaintiffs are entitled to the injunction a> prayed ? OPP. Issue No 7.—Whether the plot towards the east of Nagtna Singh Bldg. was sold to the defendant No. 1 free from all encumbrances and the easementary rights claimed by the plaintiffs were extinguished ? OPD. Issue No. 8.—Whether the burden of easement has been increased by the plaintiffs, if so, its effect ? OPD. The trial Court decided issue No. 1 in favour of the plaintiffs. Issues No. 2, 4, 5, 7 and 9 were decided against them and in favour of the defendants. Issue No. 6 pertaining to Court-fee was also decided in favour of the plaintiffs. Under issue No, 8, the trial Court held that the burden of easement has been increased by the plaintiffs, but it did not give any finding as to what was its effect on the controversy arising in between the parties with respect to the disputed right. Issue No. 6 pertaining to Court-fee was also decided in favour of the plaintiffs. Under issue No, 8, the trial Court held that the burden of easement has been increased by the plaintiffs, but it did not give any finding as to what was its effect on the controversy arising in between the parties with respect to the disputed right. Accordingly the suit was dismissed by the trial Court vide its judgment and decree dated 31-12-1979 which was unsuccessfully appealed against by the plaintiffs Vide the impugned judgment and decree, the first appellate Court affirmed the judgment and decree holding firstly that the plaintiffs have failed to legally establish that they had acquired any easementary right as claimed by them ; secondly that as regards the claim with respect to easement of air and light, the plaintiffs failed to connect the windows and ventilators with the windows and ventilators of the building as detailed with windows and ventilators existing at the spot and thirdly that there is no evidence brought on record on behalf of the plaintiffs which could establish as to what exactly would be the effect of plaintiffs access to air and light after the proposed construction of the building by the defendants. The plaintiff, Swaran Singh alone has now approached this Court through this regular second appeal seeking the relief sought by him in his plaint. 8. Kanwar Kuldeep Singh, learned Counsel for the respondents has raised preliminary objection to the effect that though the appeal under section 100 of the Code of Civil Procedure under the old Act is maintainable on a question of law much loss a substantial question of aw as envisaged under the newly amended Code of Civil Procedure 1976 the Courts below have given a concurrent finding of fact of appreciation of the evidence adduced by the parties and, in fact, no such question of law arises therefrom for the determination of this Court He has relied upon the observations made in the case of Paras Nath Thakur v. Smt. Mohani Dassi and others AIR 1959 SC 1204. 9. In this behalf, shri S.S. Kanwar Senior Advocate assisted by Ms. 9. In this behalf, shri S.S. Kanwar Senior Advocate assisted by Ms. Maninder Sodhi Advocate has vehemently urged that in the instant case the question as to whether the plaintiffs have acquired prescriptive right of easement to light and air and fixation of down pipe from the roof of the Burnswick House to the Hauzi and flow of water therefrom upto municipal nullah through underground drain passing through the plot of Se defendants is a mixed question of law and fact and as such this Court has jurisdiction to re-appreciate the evidence adduced by the parties to arrive at a correct finding in respect thereof. 10 Before 1 advert myself to the submissions made by the learned Counsels in this behalf, it would be absolutely necessary to detail the requirements which are legally needed to be fulfilled for the acquisition of a right of easement by prescription. Such conditions are :— 1. The right claimed must not be uncertain; 2. The right claimed must have been enjoyed; 3. It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed 4. It must have been enjoyed— (a) peacefully, (b) openly, (c) as of right, (d)as an easement, (e) without interruption, (f) for twenty years, or thirty years if the right is claimed against Government. 11 It is to be noted that of the last six sub-conditions, conditions (b) and (c) are not necessary for easements of light and air or support With this exception all the conditions and sub-conditions must be fulfilled before a right of easement is acquired. The Court does not recognise casement by illegal activity of either party. Now, the abovesaid requirement in relation to the acquisition of easement by prescription indicate that the party claiming such, a right has to adduce cogent and convincing evidence which may satisfy the conscience of the court The finding in this respect can only be given by appreciating the same. In that view of the matte? in case it is found that both the courts below have given a concurrent finding either way, it becomes a finding of fact and not a mixed question of law and fact nor it becomes a finding of law . 12. In that view of the matte? in case it is found that both the courts below have given a concurrent finding either way, it becomes a finding of fact and not a mixed question of law and fact nor it becomes a finding of law . 12. It is manifest that the question to be determined by the High Court on the second appeal as urged by the learned Counsel for the appellant, is essentially one of fact. It is also well-settled by a long series of decisions of the Judicial Committee of the Privy Council and the apex Court that a High Court, on second appeal, cannot go into questions of fact, howsoever erroneous a finding of facts of the court of fact may be. It is not necessary to cite those decisions at this stage Indeed, learned Counsel for the appellant in the instant case too has not been able to cite any decision clarifying that this Court is competent to go behind the findings of fact recorded by the two courts of fact. In the circumstances, it would be difficult for this Court to examine the evidence, both oral and documentary to hold that the plaintiffs have acquired right of easement to air and light as also flow of water (rain water and sullage) from the roof of Burnswick House to the Hauzi and then from Hauzi to the main nullah through underground drain existing in the plot of the defendants. Much emphasis has been placed by the learned Counsel for the appellant that the existence of ventilators, windows, down pipe, Hauzi and flow of water through the underground drain leading from Hauzi to the municipal nullah through the plot of the defendant has been admitted by the defendants in their written statement and thus, the map indicating the existence of the aforesaid parts of the building was not needed to be proved. The courts below have wrongly held that the map having not been proved, no decree with respect to acquisition of easements pertaining to the aforesaid matters can be passed in favour of the plaintiffs. The courts below have wrongly held that the map having not been proved, no decree with respect to acquisition of easements pertaining to the aforesaid matters can be passed in favour of the plaintiffs. Thus, according to the learned Counsel for the appellant, the courts below have legally erred in having based their conclusion on this fact alone and determination of this question amounts to a question of law I am unable to agree with the submission of the learned Counsel for the reason that even if the existence of the above-said windows, ventilators etc. as indicated in the map appended with the plaint be presumed, still the plaintiffs are required to prove the acquisition of the easementary right by way of prescription thereto by leading cogent and convincing evidence satisfying the conscience of the Court in that behalf. The trial Court as also the first appellate Court on appraisal of the evidence have not concurred with the claim put forth by the plaintiffs; In other words, concurrent finding of facts have been given Even if they be erroneous or wrong, this Court is precluded from re-appreciating the evidence in this behalf in view of the settled principles as to the scope of section 100 of the Code of Civil Procedure under the old Act as indicated above. I am in full agreement with the submissions of Kanwar Kuldeep Singh, learned Counsel for the respondents that no question of law under section 100 (old) of the Code of Civil Procedure arises much less substantial question of law as is now envisaged under section 100 of the newly amended Code of Civil Procedure 13. Even otherwise, apart from the consideration of the evidence by the courts below, the material placed on record examine carefully by this Court shows that the plaintiffs have led no evidence as to what kind of building and at what distance from the base of the ‘Burnswick House, defendants are intending to raise nor any cogent or convincing evidence by way of Experts has been led as to how and in what manner and to what extent the fight, of prescriptive easement as claimed by the plaintiffs, particularly in respect of light and air would be diminished by the intended construction of three-storeyed building. The first appellate Court has rightly pointed out that no evidence by way of Experts proving the above-said fact has been led by the plaintiffs as to what amount of light and air would be sufficient and how and in what manner such right would be affected by the intended construction of three-storeyed building. In that view of the matter too, the plaintiffs suit entails dismissal. 14. From whatsoever angle the case of the plaintiffs be viewed, it does not raise any question of law to be determined by this Court. Thus, in view of the concurrent findings of facts arrived at by both the courts of fact, the appeal is dismissed. The interim stay, if any, granted during the pendency of the appeal is also ordered to be vacated. In the facts and circumstances of the instant case, parties are left to bear their own costs. Appeal dismissed.