JUDGMENT 1. -This second appeal under section 100 CPC has been preferred by the defendant appellant against the appellate judgment and decree dated 15.11.1980 passed by the learned Addl. Civil Judge, Udaipur. 2. Plaintiff respondent had filed suit for permanent injunction alleging that there was a lane between the houses of the plaintiff and the defendant and that on the northern wall of the plaintiff's one room in the ground floor there was a window of 21/2" x 2" and two smoke passages (131T WC). It was pleaded that for the last about 50 years the plaintiff was enjoying light and air through that window but the defendant was raising wall closing the same. It was also averred that the plaintiffs were discharging water through spout in the lane and the user had ripened in the right of easement but the defendant was putting obstructions.In the written statement, the defendant admitted that there were two smoke passages as stated in the plaint. However, the existence of the window was denied. It was also denied that the plaintiffs had a right to discharge water in the lane. It was averred that the window was opened just one and a half month before the filing of the suit. 3. On the pleadings of the parties, the learned Munsif framed three issues. The learned Munsif framed three issues. The plaintiff entered into the witness box and examined PW 2 Sohan Lal and PW 3 Goverdhan. In rebuttal, defendant Nemichand entered into the witness box and examined DW 2 Pannalal, DW 3 Bhuralal and DW 4 Heeralal. After hearing the arguments for the learned counsel for the parties, the trial Court held under issue no. 1 that the plaintiff had been enjoying light and air through the window and the ventilators in the first storey and that he had been discharging water through the spout in the lane. It further held that the plaintiff could not prove that the closure of the window of the room of the ground floor substantially diminished the air and light. The Court, therefore, dismissed the suit to that extent. The remaining suit was decreed. 4. This judgment was challenged in appeal by the plaintiff. The defendant also filed cross objection. The learned Addl. Civil Judge held that there was no merit in the cross objection filed by the defendant. The Court, therefore, dismissed the suit to that extent. The remaining suit was decreed. 4. This judgment was challenged in appeal by the plaintiff. The defendant also filed cross objection. The learned Addl. Civil Judge held that there was no merit in the cross objection filed by the defendant. He further held it was proved on record that the closure of the window would cause substantial damage to the plaintiff. He, therefore, decreed the plaintiff's suit in that regard also. 5. The contention of Mr. Maheshwari was that admittedly there are two ventilators in the room and, therefore, closure of the window would not materially diminish the light and air and as such the Addl. Civil Judge has erred in holding that the closure of the window would cause substantial damage to the plaintiff. 6. On the other hand, Mr. Shishodia contended that the finding of the first appellate Court is based on the appreciation of evidence and this Court should not interfere with this finding while hearing second appeal. He urged that the smoke passages are constructed to emit smoke and the manner in which they are constructed, they cannot bring light and air to the room. According to him if the window is closed, there will be virtually no light and air in the plaintiff's room and as such the learned Addl. Civil Judge has rightly found that the closure of the window would cause substantial damage to the plaintiff. 7. I have given the matter my thoughtful consideration. In the plaint, as stated above, it was averred that in the room of ground floor one window and two smoke passages were there. In the written statement it was admitted that there were smoke passages in the northern side of the wall. It was thus not in dispute between the parties that two smoke passages were in existence in the northern side of the wall of the room. However, in the statement of the plaintiff it has come that there are ventilators in the northern side of the wall. The two witnesses examined by the plaintiff also call the openings as ventilators. But in the statement of defendant he has called the openings as smoke passages Mail Wk1). However, in the statement of the plaintiff it has come that there are ventilators in the northern side of the wall. The two witnesses examined by the plaintiff also call the openings as ventilators. But in the statement of defendant he has called the openings as smoke passages Mail Wk1). It appears that there is some confusion regarding the name of the openings on the wall but it is certain that there are two such openings on the northern side of the wall which are used to emit smoke. There might be some light and air coming through such openings but it cannot be said that air and light coming from such openings only would be sufficient to render the room of the plaintiff habitable. We may call them 131T Wff or fr'41-4419. or something else but it is certain that they are of the dimensions of 1" x 1" as per the statement of Nemichand himself. Such openings are normally situate on the upper end of the wall near ceiling. It can definitely be said that enough light and air cannot travel through such openings as to make the room habitable. 8. It has come in the statement of plaintiff Basantilal that there was no other openings except the window for the air and light. No cross-examination has been directed on this point. Plaintiff's witness Sohanlal (PW 2) has also deposed that if the window is closed there will be darkness in the room. He has also not been cross-examined on the point. Girdhari (PW 3) has also deposed that there was no other source of air and light except the window. This witness has also not been cross-examined on this point. Coming to the statement of defendant Nemichand (DW 1) it is to be noticed that he has not deposed that if the window is closed yet there would be enough air and light in the room of the plaintiff. He has rather avoided to answer the relevant questions put in his cross-examination. He was asked whether on the closure of the window there would be darkness in the room of the plaintiff to which he stated that he could not say. He has rather avoided to answer the relevant questions put in his cross-examination. He was asked whether on the closure of the window there would be darkness in the room of the plaintiff to which he stated that he could not say. Though in the earlier part of his statement he stated that there was other source of light and air in the room of the plaintiff, but he admitted that he never went in the house of the plaintiff and as such his statement does not rebut the plaintiff's evidence that if the window is closed, there will be no source of light and air as to keep the room habitable. 9. In view of the clear evidence of the plaintiff which remained unrebutted, the learned Addl. Civil Judge was perfectly justified in holding that it was proved on record that if the window was closed, there will be material diminution of light and air and it would cause substantial damage to the plaintiff. 10. Mr. Maheshwari referred to the case of Umrao Kanwar v. Ram Pyari, 1959 Raj. 235 which was also relied on by him in the trial Court. In this case, it has been held that in suit for injunction on the ground of infringement of prescriptive right to light and air from certain window and ventilators, the plaintiff can get injunction if he is able to prove substantial damage. There cannot be dispute regarding this legal position. However, in the instant case as already discussed above, the plaintiff has successfully proved that substantial damage would be caused to him by the infringement of his right to light and air through the window. 11. N other point was pressed. 12. There is no merit in this second appeal which is hereby dismissed with no order to costs.Appeal dismissed. *******