Judgment : 1. The plaintiffs in O.S.No.643 of 1985 on the file of the Fifth Additional Subordinate Judge, Tiruchirappalli, are the appellants in the second appeal. They filed the suit for declaration that they have easementary right to receive light and air through seven windows on the northern wall of A Schedule property described in the plaint and as a consequential relief for mandatory injunction directing the respondents herein to remove the thatties and other materials that had been placed obstructing the light and air failing which to have the same done through process of court; for permanent injunction restraining the respondents herein from interfering with their easementary right to receive light and air through the seven windows on the northern wall of A Schedule property from the northern property, i.e., B Schedule property; for permanent injunction restraining them form interfering with their right to go to the B Schedule property for making repairs and making constructions in A Schedule property; for mandatory injunction directing the respondents to remove all trees and plants that had been planted in the B Schedule property, failing which to have the same done through process of court; and for permanent injunction restraining the respondents from putting up any constructions or planting trees and other things in the B Schedule property. 2. Their case as set out in the plaint was as follows: They were the owners of A Schedule property, each of the plaintiffs having purchased an undivided 1/3rd share from the previous owner under a registered sale deed dated 5. 1980, pursuant to which they were put in possession of the property and were also in possession and enjoyment. The property originally belonged to one Rao Bahadur Krishnamachariar. He purchased the property as a site from Srirangam Municipality. Within two or three years of his purchase, he put up a pucca construction. The construction put up by him was still there and no alteration had been made after the construction, the building having been in existence for more than 57 years at the time of filing the suit. There was a building wall on the northern end of the plaintiffs’ property. In that wall there were seven windows and the windows opened towards north. One window was in the bedroom, three windows in the hall, one window in the store room and one window in the kitchen. There was a building wall on the northern end of the plaintiffs’ property. In that wall there were seven windows and the windows opened towards north. One window was in the bedroom, three windows in the hall, one window in the store room and one window in the kitchen. Above the windows there were ventilators and each window had got a sun-shade projecting on the north. Such a projection had been in existence from its inception i.e., from the time of the construction of the building. The rooms situate south of the windows had been receiving light and air from the vacant site on the north. By enjoyment of the light and air through the windows from the north, an easementary right had been prescribed. The property north of the A Schedule property originally belonged to one Ethiraja Valliammal. There was an agreement entered into between Rao Bahadur Krishnamachariar and Ethiraja Valliammal represented by her power agent Srinivasachariar on 3. 1927. As per the terms of the agreement Ethiraja Valliammal undertook not to make any construction adjoining th northern wall of Krishnamachariar. She further undertook not to cause any obstruction to the windows or to the weather boards. She had also undertaken to leave 5 feet lane north of the northern wall of the plaintiffs’ building. Five feet space was agreed to be left as a lane so as to enable the windows to get light and air and also not to cause any damage to the weather boards projecting from the windows and also to enable the southern owner to do all repairs to his walls by passing through that lane. A lane as contemplated under the agreement was actually left. The plaintiffs’ predecessors were also carrying out the repairs to the wall by passing through the lane. This right had been acquired by prescription. The plaintiffs’ had a right of urban servitude on the B Schedule property. Taking advantage of the absence of the plaintiffs’ predecessors in title, the defendants put up constructions in the front portion leaving a space of 3 feet only. Except the small constructed portion, in other places there was a vacant space of 5 feet. The trustee of the temple used his influence with the police and was giving trouble to the plaintiffs. On 110. Except the small constructed portion, in other places there was a vacant space of 5 feet. The trustee of the temple used his influence with the police and was giving trouble to the plaintiffs. On 110. 1981 the trustee of the temple came with a number of policemen and put up bamboo thatties in front of the windows on the northern side thereby completely obstructing light and air that passed through the windows. The protest of the first plaintiff was of no avail. The rooms had become dark and there was no air. There was diminution of air and light to the rooms. The defendants had no right to make such obstruction. The plaintiffs were also contemplating to put up construction in the front portion immediately south of the northern wall. For putting up such construction, the plaintiffs had every right to pass through the defendants property and make such a construction. Originally, on the western end there was a doorway. Only recently the same was closed as the plaintiffs’ predecessors were assured access through the main gate. The second defendant was giving out that he would not allow the plaintiffs or their workers to enter upon the property to carry out the constructions. The defendants had planted trees in the land making it impossible to use the lane. The trees that had been planted within 5 feet had to be removed. The suit was filed for the reliefs already mentioned. 3. Thedefendants resisted the suit contending inter alia as follows: No doubt, there was an agreement dated 3. 1927, but the agreement had not been given effect to nor was it acted upon as would be evident from the subsequent events. Rights thereunder had been abandoned by non-user by the plaintiffs’ vendors. The defendants had put up a pucca building in or about the year 1927 within the 5 feet from the north of the northern wall of the plaintiffs without any objection whatsoever the acquiescence on the part of the plaintiffs’ predecessors in title. There was no lane as such in boosthithi. It was only on paper. This extent of ‘5’ had been reduced into the exclusive possession of the defendants and their predecessors in title. There was no lane as such in boosthithi. It was only on paper. This extent of ‘5’ had been reduced into the exclusive possession of the defendants and their predecessors in title. Upto the fringe of the space occupied by a pucca building in the defendants’ property neither the plaintiffs nor their predecessors in title had at any time any need to enter into the defendants’ building for any of the purposes mentioned in the plaint. Thus the agreement relied on never came into effect. This is further strengthened by the fact that there are various kinds of trees within the 5 feet from the northern side of the northern wall of the plaintiffs and that would indicate such an agreement was not given effect to. The trees had been in existence for more than 40 years. Even otherwise, without conceding the enforceability of the agreement and the operative nature existence of ventilators is not contemplated under the agreement. At no point of time was many repair carried out by the plaintiffs’ predecessors in title to the northern wall by gaining entry through the defendants’ property, that is to say, by passing through the alleged lane. Only the defendants and their predecessors in title had been carrying out repairs to the northern wall of the plaintiffs. This would disprove the easement set up by the plaintiffs. The further claim by the plaintiffs for urban servitude would not also avail the plaintiffs. The plaintiffs had purchased only litigation. No new construction had been put up. Right from 1927 the features mentioned exist continuously without any objection by anybody. No vacant space as ever left. It is not correct to say that the trustees of the temple had influenced the local police. Only because of the audacious attitude adopted by the plaintiffs exerting their influence with the local police compelled the defendants to go to the police. The very idea in the plaintiffs having purchased the property is to cause harassment and hindrance to the continued existence and worshipers going to the defendants’ temple. Only because of the audacious attitude adopted by the plaintiffs exerting their influence with the local police compelled the defendants to go to the police. The very idea in the plaintiffs having purchased the property is to cause harassment and hindrance to the continued existence and worshipers going to the defendants’ temple. It will be used admittedly for non-residential purpose of Kalyana Mandapam which would invite various troubles apart from loudspeaker menace, arrival of tourist buses and a number of unruly elements staying in the building during the time of marriage and other occasions causing extreme nuisance to the peaceful devotion and worship and also affecting the sanctity of the temple itself. Only to cause nuisance to the defendants the present suit had been filed. The other details regarding what happened at the police station were all false. Only the plaintiffs had unequivocally agreed in writing to the very same police that they had no objection for the continued existence of bamboo that ties and thatches. Because of this undertaking which was voluntary, the plaintiffs are estopped from claiming any right contrary to the same. There was no protest by the plaintiffs when the defendants put up thatches. Light and air are not blocked from entering the plaintiffs’ property. There has been no obstruction or diminution in any manner whatsoever. It is only the plaintiffs who are trying to obstruct the passing of light or air through the defendants building by their construction in the front portion. Which is being done without permission from the Municipality. The defendants would be entitled to independent action. It was also false to say that there was a doorway giving access to the main gate and that it was closed recently and that the plaintiffs’ predecessors were assured of access through the main gate. No trees had been planted recently and that too for the purpose of making it impossible for the plaintiffs to use the alleged lane. There is no cause of action for the suit. 4. Onthe basis of the above pleadings, the learned Fifth Additional Subordinate Judge framed the necessary issues and on the basis of the oral and documentary evidence held as follows: There is a property on land as B Schedule. There are seven windows on the northern wall of the plaintiffs building. The plaintiffs had been receiving light and air through the said windows. There are seven windows on the northern wall of the plaintiffs building. The plaintiffs had been receiving light and air through the said windows. Because of the thatties and coconut thatches placed by the defendants, the free flow of light and air to the plaintiffs property has been effected. The plaintiffs are entitled to get light and air to the B Schedule 5 feet lane. The plaintiffs are entitled to access through the lane once a year for carrying out repairs to the property after giving a months notice to the defendants and the same cannot be prevented by the defendants. The trial court decreed the suit on the above terms, however without costs. 5. The defendants filed appeal in A.S.No.320 of 1987 before the District Court, Trichirappalli, and the plaintiffs filed cross appeal insofar as the trial court refused relief with regard to cutting of trees and to have ventilation of air and light in respect of the windows and other openings and also disallowed costs. The learned District Judge framed the necessary points for consideration and by judgment and decree dated 14. 1988 confirmed the decision of the trial court with regard to all the reliefs granted except with regard to the relief to the plaintiffs being given access through the lane for annual repairs. 6. It would be pertinent here itself to refer to a certain observation made by the learned District Judge that the plaintiffs had filed cross appeal only with regard to disallowance of costs, which from the records is found to be factually incorrect. The plaintiffs had filed cross appeal with regard to cutting of trees as well. 7. The plaintiffs have filed the present second appeal in so far as the relief of access through the lane for repairs had been disallowed and also with regard to the relief relating to cutting of trees. 8. At the time of admission the following substantial questions of law were framed for consideration in the second appeal; .(1) Whether the lower appellate court properly appreciated and applied the principles governing the right of parties to maintain a common wall to the facts of the present case. 8. At the time of admission the following substantial questions of law were framed for consideration in the second appeal; .(1) Whether the lower appellate court properly appreciated and applied the principles governing the right of parties to maintain a common wall to the facts of the present case. and, .(2) Whether there has been a misconstruction and omission to construe the material evidence on record by the lower appellate court when it chose to reverse the finding and the relief in favour of the plaintiff by the first court in respect of the common wall. .9. Mr.T.M.Hariharan, learned counsel for the appellant, submitted that a careful reading of the 1927 document entered into between the plaintiffs’ predecessors in title and the defendants’ predecessors in title would put the matter beyond any doubt, that the plaintiffs are entitled to have access to the lane in the defendants’ property for carrying out repairs to the plaintiffs’ northern wall. The learned counsel further submitted that the plaintiffs are entitled to have the trees which have grown in the defendants’ property in the 5 feet lane cut in order to have ventilation of air and light in respect of the windows and other openings which easementary right of light and air has been upheld by the courts below and without cutting the offending trees in question the plaintiffs cannot have proper light and air as otherwise the grant of easementary right of air and light through the windows and openings granted by the courts below would become illusory and would remain only in paper. 10. The defendants have not questioned the decision by the lower appellate court in so far as the reliefs with regard to easementary right of free flow of light and air to the plaintiffs property through the windows and other openings, granted by the Courts below. However, the learned Senior Counsel Mr.M.N.Padmanabhan for Mr.M.N.Muthukumaran, learned counsel for the defendants, contended that the defendants have undertaken in their very written statement that they would make the repairs to the northern wall of the plaintiffs’ building at their own cost. The learned Senior Counsel further submitted that the agreement relied on by the plaintiffs does not mention about the right of ingress or egress. The learned Senior Counsel further submitted that the agreement relied on by the plaintiffs does not mention about the right of ingress or egress. It only provides for leaving space for light and air and the plaintiffs calling the vacant space as lane is a misnomer and if really it was meant to be a lane, the agreement would have mentioned about it in so many words. The learned Senior Counsel made a further point that there is also no proof that the lane was used as such by the plaintiffs vendors and the vendors had also not been examined by the plaintiffs. The first plaintiff examined himself as P.W.1 also does not mention about such an user. The property was purchased only in 1980 and the suit was filed in 1981. The second defendant as D.W.1 has spoken to the plaintiffs’ vendor never using or entering the vacant space for repair or whitewashing and there was no cross-examination on the point and in any event, in law such an easement could be given only if it was in existence and there was no inconvenience caused to the neighbours. In this connection, the learned Senior Counsel relied on the Commentaries by Chitaley on Transfer of Property Act, Sec.8. The learned Senior Counsel finally contended that the defendants are a temple and allowing people would cause hardship to worshippers. The learned Senior Counsel reiterated the undertaking given in the written statement and submitted that the undertaking could be recorded and the matter disposed of. 11. It is necessary now to have a look at the document Ex.A-4. That was an agreement between one Krishnamachariar, predecessor in title of the defendants’ property and one Ethiraja Valliammal, the predecessor in title of the plaintiffs. The relevant portion of the document runs as follows: .12. The point to be considered is whether the document providing that the owner on the northern side should leave a lane having a breadth of 5 feet and the northern owner should not put up any construction in a way to obstruct the weather-boards already put up in the northern wall of the souther owner, permits access through the lane for repairing the northern wall. From the document it can be easily made out that the northern owner is bound to keep a 5 feet breadth lane on the souther side of his property without putting up any construction is such a way as not to affect the weather boards put up in the southern property. The trial court as well as the lower appellate court have relied on the report of the Advocate Commissioner to the effect that because of the thatties and thatches put up by the defendants the building of the plaintiffs have lost light and air and rightly did the courts below grant the injunction. So far as the trees are concerned, the courts below have reasoned that they would not obstruct air and on the contrary they would only give air and therefore the plaintiffs were not entitled to the relief of removal of the trees. The plaintiffs cannot therefore ask for removal of the trees. However, as regard access through the lane it cannot be said that the deed expressly permits the southern owner to go through the lane to repair his northern wall. 13. This takes us to the next question as to whether impliedly the plaintiffs can have access through the lane to carry out repairs to the northern wall of their property. The agreement had been reached for more beneficial enjoyment of the southern property. This would definitely take in the right of access for carrying out repairs and whitewashing as otherwise, if the weather boards or the windows were to decay and be damaged for want of access to keep them in a state of disrepair the very purpose for which the agreement was entered into would become otiose. In my view, the right reserved for the owner of the souther property under Ex.A-4 will take in the right to have access for repairing the northern wall also. Even otherwise, the law is well settled on this point. .14. In L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu (1965)2 MLJ. In my view, the right reserved for the owner of the souther property under Ex.A-4 will take in the right to have access for repairing the northern wall also. Even otherwise, the law is well settled on this point. .14. In L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu L.Damodaraswami Naidu v. S.T.Damodaraswami Naidu (1965)2 MLJ. 522 relied on by the trial court it has been held as follows: .“Where the boundary wall of a house is exposed to sun and rain, the owner of that house is entitled to have it protected and for that purpose the neighbour is liable to give access to the owner of the wall for purposes of repairing and whitewashing it. The neighbour will be entitled to a similar right as against his adjoining owners. This is a well recognised right of owners of properties in urban areas and is one of the miscellaneous easements known as urban seritudes.” .15. However, exercise of such right is subject to the convenience of the owner through whose property access is claimed. The lower appellate court has proceeded on the footing that the plaintiffs/appellants had not proved by any acceptable evidence that either they or their predecessors in title exercised any such right. In my view, it is not the correct approach to the matter. In fact, it is conceded in the written statement that the defendants would attend to the repairs to the northern wall of the plaintiffs. In my view, this undertaking by itself will not solve the problem. It will be a difficult proposition to enforce the undertaking and we cannot also ensure that the undertaking would be honoured in letter and spirit. The plaintiffs will not have means of knowing as to whether the repairs had been carried out in a proper manner or even whether any repairs had been at all carried out. Having regard to the strained relationship between the parties that the parties had gone to the police to bring pressure on each other, it is neither feasible nor advisable to go by the undertaking. On the contrary, if the relief is granted to the appellants with necessary safeguards to ensure that the defendants are not unnecessarily harassed and put to inconvenience when it came to the plaintiffs repairing their wall on the northern side, the problem would be solved. On the contrary, if the relief is granted to the appellants with necessary safeguards to ensure that the defendants are not unnecessarily harassed and put to inconvenience when it came to the plaintiffs repairing their wall on the northern side, the problem would be solved. Mr.M.N.Padmanabhan, learned Senior Counsel made a very pointed reference to the first defendant being a temple and the sanctity of the place being affected by such a relief being granted in favour of the plaintiffs. I do not think that a mere permission to go to the defendants’ property at the most once a year with necessary advance notice to the defendants would in any way affect the sanctity of the first defendants would in any way affect the sanctity of the first defendant temple. The defendants should have grace enough to permit the plaintiffs on prior notice to enter their property for the purpose of carrying out repairs to their wall. At the risk of repetition, I fail to see how the sanctity of the temple will be affected by allowing the workmen of the plaintiffs for carrying out repairs. It may not be out of place to mention that the defendants themselves may require their building to be repaired and for which purpose they have to give access to the workmen trained in that field and it cannot be said that the sanctity of the place will be affected. The difficulties pointed out, by the learned Senior Counsel are really no difficulties, but only imaginary and without substance. It is a matter of mere adjustment between the parties and it should not be grudged by the defendants to the plaintiffs. The decision of the learned District Judge reversing the decision of the trial court with regard to the decree for access through the defendants property cannot therefore be sustained. 16. Consequently, the second appeal will stand allowed. The judgment and the decree of the lower appellate court in so far as the access part is concerned are set aside. The substantial questions of law raised for decision are answered accordingly. The decree of the trial court in this regard is restored. However. there will be no order as to costs.