JUDGMENT 1. - This appeal has been filed by defendant against judgment and decree passed by learned Additional District Judge, Jhalawar, dated 01.06.1991, confirming judgment of learned Munsiff, Jhalawar, dated 05.08.1982 whereby suit filed by plaintiff-respondent was decreed. 2. In order to appreciate the controversy, the factual matrix of the case may be noticed. The plaintiff-respondent filed a suit for permanent injunction against defendant-appellant in the court of Munsiff, Jhalawar, pleading therein that the room on the rear ground floor of his house measuring 9' x 9.6' had two ventilators and one window towards the southern side, which were in existence for last over 100 years. On the first floor room also there was a spout opening towards south. The ground floor room had a gate of the size 4.5'x12.6' opening in central chowk of plaintiff's house. The open land measuring 46.8'x4.6' towards south of the aforesaid ground floor room was owned by the plaintiff. The defendant had constructed a wall and thereby closed the two ventilators and one window of the ground floor room and spout of the first floor room. The defendant has thus violated his easementary right of air, light and draining of water, which he was enjoying as easement for the last about 100 years. Due to illegal construction raised by the defendant, house of the plaintiff has been damaged inasmuch as spout and cornice have been pulled down and roof of the room has become shaky. Prayer was made that the construction already raised be removed so as to ensure restoration of plaintiff's easementary right to light, air and drainage of water and an amount of Rs. 639/- was also claimed as damages. 3. Learned trial court framed as many as ten issues. Issues no.1 and 2 were relating to easementary rights of the ventilators and window and spout respectively. Issues no.3 and 4 were regarding their closure and damages respectively. Issue no.5 was to the effect whether the defendant, by aforementioned action, has infringed easementary rights of the plaintiff. 4. The trial court decided all the issues in favour of plaintiff except issue no.4 relating to damages and decreed the suit for mandatory injunction on 05.08.1982 directing the defendant to demolish the construction raised by him adjacent to the house of the plaintiff. Appeal preferred by the defendant against aforesaid judgment was dismissed by the District Judge. 4. The trial court decided all the issues in favour of plaintiff except issue no.4 relating to damages and decreed the suit for mandatory injunction on 05.08.1982 directing the defendant to demolish the construction raised by him adjacent to the house of the plaintiff. Appeal preferred by the defendant against aforesaid judgment was dismissed by the District Judge. Hence, this second appeal under Section 100 of the Code of Civil Procedure. 5. While admitting the appeal on 29.07.1992, this court framed following substantial questions of law:- 1. Whether as pleaded by the plaintiff, when he was the owner of both the dominant as well as serviette heritage, the suit for injunction on the basis of easementary right was maintainable? 2. Whether when the defendant was a trespasser over the land constructed upon could the decree for demolition could be passed without a decree for possession? 3. Whether in the absence of substantial damage to the plaintiff within the meaning of Section 33 of the Easement Act a decree for demolition and injunction could be passed?" 6. I have heard Shri B.L. Mandhana, learned counsel for defendant-appellant and Shri Anurag Agarwal, learned counsel for plaintiff-respondents. 7. Shri B.L. Mandhana, learned counsel for defendant-appellant, referred to Para 2, 4 and 9 of the plaint and argued that when the plaintiff himself has pleaded that four feet wide land behind his house towards southern side on which disputed ventilators and window opened was owned by him, there was no case for claiming easementary rights. Easementary rights can be claimed only against a third party in his land. The learned trial court failed to appreciate the law of easement especially Sections 4 and 15 of the Indian Easements Act, 1882. Section 4 of the Act clearly provides that an easement is a right which the owner or occupier of certain land possesses and Section 15 provides that such easementary right has to be claimed vis-a-vis the land of another person. In the present case, the substantial question of law that arises for consideration is that as per own admission of the plaintiff himself, he was owner of both the dominant and the servient heritage, therefore the suit for injunction on the basis of easementary rights was not maintainable. In the present case, the substantial question of law that arises for consideration is that as per own admission of the plaintiff himself, he was owner of both the dominant and the servient heritage, therefore the suit for injunction on the basis of easementary rights was not maintainable. In a situation like this, unless the learned trial court decreed the suit for possession as well, it could not legitimately direct demolition of the wall constructed by the defendant. Learned counsel submitted that in the absence of pleading of the plaintiff within the meaning of Section 35 of the Act of 1882, decree for injunction could not be passed. Learned counsel argued that a court cannot make out a case not pleaded by a party. A court has to confine its decision only on the question that are specifically raised in the pleadings. No case for easementary rights was made out in the pleadings by the plaintiff. The suit was therefore liable to be dismissed. 8. Shri B.L. Mandhana, learned counsel for the appellant, argued that learned trial court erred in holding that disputed land belonged to municipal board. Nobody set up that case. It was argued that there was no pleading by either of the parties that the land was owned by the municipal board, which was not even a party to the suit. The municipal board never raised any objection about raising of wall by the defendant, therefore it cannot be said that the land was that of the municipal board. It is a trite law that the plaintiff must stand on his own legs and cannot rely on the weaknesses or otherwise on the defendant. 9. In support of his arguments, learned counsel relied on the judgment of the Supreme Court in Anathula Sudhakar v. Buchi Reddy (dead) by LR's and others - AIR 2008 SC 2033 , Bachhaj Raj Nahar v. Nilima Mandal and Others - AIR 2009 SC 1103 and Chapsibhai Dhanjibhai Dand v. Purushottam - AIR 1971 SC 1878 . Learned counsel also relied on the judgment of the Supreme Court in Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) and Others - AIR 2007 SC 2577 . 10. Learned counsel also relied on the judgment of the Supreme Court in Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) and Others - AIR 2007 SC 2577 . 10. Per contra, Shri Anurag Agarwal, learned counsel for respondent, argued that the suit has been decided on the basis of pleadings and evidence and no new case has been made out by the court in favour of any of the parties. Learned counsel referred to the judgment passed by the trial court and argued that there was overwhelming evidence on record to show that ventilators and window were in existence for a very long time. In this connection, learned counsel referred to statements of plaintiff's witnesses, namely, PW-1 Bhupendra Kumar, PW-2 Mishrilal, PW-3 Shrinath, PW-4 Narainsingh, PW-5 Bhanwarlal, PW-6 Chunnilal, PW-7 Gaindalal, PW-8 Tejmal, PW-9 Charanjeet and PW-10 Chouthmal. It was argued that when the defendant applied for permission to raise construction, he submitted a map to the municipal board and municipal board permitted him to raise construction on the condition of leaving two feet wide lane towards southern side of the plaintiff's house. The defendant could not raise construction on this land. PW-2 Mishrilal has stated that his younger brother used to reside in the house in 1942 and that this house has two ventilators and one window for last several years. There was a spout on the first floor. Now the defendant has raised a wall blocking the air and light. PW-3 Shrinath also gave the same evidence. He used to reside in this house from 1947. This house has two ventilators and one window towards its southern side which facilitated entry of air and light. PW-6 Chunnilal has stated that at the instance of the plaintiff, foundation of the wall was dug and wall was constructed, which blocked ventilators and window. He used to see these ventilators and window ever since he attained maturity. To the same effect is the statements of PW-7 Gaindalal, PW-8 Tejmal and PW-10 Chouthmal. In support of his case, the defendant produced number of witnesses, namely, Jeetmal DW-1, Kewalchand DW-2, Madanlal DW-3 and Dwarkalal DW-4. Learned counsel submitted that the defendant himself in his statement admitted the fact that ventilators and window of the house of the plaintiff had opening towards southern side. He also stated that he wanted to raise construction after leaving certain open land to facilitate opening of ventilators/window etc. Learned counsel submitted that the defendant himself in his statement admitted the fact that ventilators and window of the house of the plaintiff had opening towards southern side. He also stated that he wanted to raise construction after leaving certain open land to facilitate opening of ventilators/window etc. but the defendant did not permit him to use their window for construction on side of the plaintiff and rather started fighting with the plaintiff when he raised construction. In cross-examination also, the defendant stated that he was willing to raise construction after leaving two feet wide strip of land towards southern side of the plaintiff's house but when the plaintiff did not permit the defendant to have access to the land through the window, the defendant did not leave the open area. It was argued that except ventilators and window that were opening towards southern side, there was no other window or ventilators for air and light in the house of plaintiff. Impugned judgment has been passed on the basis of overwhelming evidence on record that supported the case of the plaintiff. Even the defendant could not produce any title document with regard to disputed land. Learned counsel argued that in Para 5 of the written statement the defendant has admitted existence of window and ventilators but he only sought to explain them away by stating that they were constructed only recently, which fact he could not prove. It is therefore prayed that the appeal be dismissed. 11. I have given my anxious and thoughtful consideration to rival submissions and perused material on record. 12. Although it is true that a court cannot make out any new case in favour of any of the parties which it has not set up in its pleadings but to say on that basis that no case of easementary right was set up by the plaintiff in the present case, is also not correct. In order, however, to appreciate the arguments raised from either side on this aspect, law as has been enunciated in catena of judicial pronouncements of the Supreme Court, may briefly be noticed with the help of the precedents cited at the bar. 13. In order, however, to appreciate the arguments raised from either side on this aspect, law as has been enunciated in catena of judicial pronouncements of the Supreme Court, may briefly be noticed with the help of the precedents cited at the bar. 13. In Chapsibhai Dhanjibhai Dand v. Purushottam , (supra), the Supreme Court held that to establish a prescriptive acquisition of easementary right, one must prove that he was exercising that right on a property treating it as some one else's property. In Bachhaj Nahar v. Nilima Mandal and Others , supra, the Supreme Court held that when there is no pleading as to easementary rights, the court cannot make out a new case in favour of the plaintiff. Conversion of a suit for title into a suit for enforcement of easementary rights for grant of injunction by High Court was held to be not proper. However, in that very judgment, the Supreme Court held that object and purpose of pleadings and issues is to ensure that litigants go to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. It was held that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. 14. In Bachhaj Nahar v. Nilima Mandal and Another - (2008) 17 SCC 491 , (supra), it was held by the Supreme Court that no amount of evidence upon a plea which was never put forward in the pleadings can be looked into to grant any relief. In exceptional cases, however, where the court is fully satisfied that the pleadings and issues generally cover the case substantially put forward and that the parties being conscious of the issue, had led evidence on such issue, that the relief may still be granted. 15. In exceptional cases, however, where the court is fully satisfied that the pleadings and issues generally cover the case substantially put forward and that the parties being conscious of the issue, had led evidence on such issue, that the relief may still be granted. 15. In the present case, the pleadings regarding easementary rights were very much made although in the plaint an addition was made in Para 4 of plaint by use of ink in hand writing to say that the 4'2" wide strip of land on which ventilators and window were opening, belonged to plaintiff. But at the same time, in this very Para it was stated that spout was opening on this land where the water used to fall during rains for last about 100 years. In Para 2 of the plaint it was stated that two ventilators and one window were opening towards the land on its southern side. In the written statement also the defendant admitted that these ventilators and window but stated that they have been constructed only recently, which fact has not been proved by evidence. Number of witnesses, who appeared on behalf of defendant, have stated that these ventilators and window existed for a very long period. The defendant, in his statement, clearly admitted the fact of existence of ventilators and window and also that he was at one stage prepared to leave two feet wide strip. But when the plaintiff did not permit him to use the window and have access to the land in dispute for raising the construction etc., the defendant raised the construction over the land adjoining the house of the plaintiff. Even when the municipal board granted permission to the defendant to raise construction, it did not allow the defendant to raise any construction over this disputed two feet wide strip of land which was precisely because the plaintiff had openings of his ventilators, window and spout towards this land. Although the defendant has in one part of the statement in examination in chief denied that he blocked any ventilator/window/spout and even denied their existence. Besides, the evidence on record proved this fact, namely, by statements of PW-1 Bhupendra Kumar, PW-2 Mishrilal, PW-3 Shrinath, PW-4 Narainsingh, PW-5 Bhanwarlal, PW-6 Chunnilal, PW-7 Gaindalal, PW-8 Tejmal, PW-9 Charanjeet and PW-10 Chouthmal. Although the defendant has in one part of the statement in examination in chief denied that he blocked any ventilator/window/spout and even denied their existence. Besides, the evidence on record proved this fact, namely, by statements of PW-1 Bhupendra Kumar, PW-2 Mishrilal, PW-3 Shrinath, PW-4 Narainsingh, PW-5 Bhanwarlal, PW-6 Chunnilal, PW-7 Gaindalal, PW-8 Tejmal, PW-9 Charanjeet and PW-10 Chouthmal. PW-2 Mishrilal has stated that his younger brother used to reside in the house in 1942 and that this house has two ventilators and one window for last several years. There was a spout on the first floor. Now that the defendant has raised a wall blocking air and light. PW-3 Shrinath also gave the same evidence that he used to reside in this house from 1947. This house has two ventilators and one window towards its southern side which facilitated entry of air and light. PW-6 Chunnilal has stated that at the instance of the plaintiff, foundation of the wall was dug and the wall was constructed which blocked ventilators and window. He used to see these ventilators and window ever since he attained maturity. To the same effect is the evidence given by PW-7 Gaindalal, PW-8 Tejmal and PW-10 Chouthmal. 16. In Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others - (2010) 2 SCC 689 , the Supreme Court, on the question of easementary rights, held that grant of easement can be claimed even by implication as well. In that case also the argument was raised that there are no pleadings in the plaint about implied grant of easementary rights and no issue was framed. The Supreme Court held that since the parties fully understood their case and adduced evidence, the trial court and high court were justified in reaching to the conclusion that the plaintiff had acquired a right of easement in respect of pathway by way of implied grant. Interference in the findings of fact arrived at by both the courts below was declined. The Supreme Court noted the objection of the defendant that no implied grant was pleaded in the plaint. While brushing aside that objection, the Supreme Court held that trial Court was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. 17. While brushing aside that objection, the Supreme Court held that trial Court was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. 17. In the present case also, except that hand written addition was made by ink in Para 4 of the plaint at which place after 'khuli jamin' the following words were inserted "461/2 x4.2" foot vadi ki hai", in Para 2, 3, 4 and 9 definite pleadings about easementary rights have been specifically made. It has been specifically asserted that there existed two ventilators of the size 1.2'x4' and one window of the size 1.2' x 1.6', and one spout on the first floor opening towards southern side of the disputed land and that obstruction has caused complete darkness in the room and blocked the inflow of area, running the room inheritable. Though the defendant has denied the existence of ventilators/window and spout but that is only a feeble attempt on his part but in his court statement, he could not stand the scrutiny of cross-examination and admitted that initially he was prepared to leave two feet wide open strip but when he wanted to have access to the land in dispute through the window of the plaintiff's house, the plaintiff declined such permission. He also did not stick to his earlier stand and raised the construction on the disputed strip of land. The trial court as also the appellate court have made indepth consideration of evidence on record proving the existence of ventilators/window/spout for a very long period of time and thus decreed the suit. 18. In view of the above discussions, I am not inclined to uphold the argument that the trial court has made out a new case in favour of plaintiff which was not pleaded. Requirements of Sections 4 and 15 of the Act of 1882 were fully satisfied. When the municipal board while granting permission of construction, did not permit the defendant to raise any construction over the disputed two feet wide strip, whether or not municipal board was a party to the suit does not make any difference. The fact that two ventilators, one window and one spout existed and opened towards southern side of the plaintiff's house, has been fully proved by number of witnesses mentioned above. The fact that two ventilators, one window and one spout existed and opened towards southern side of the plaintiff's house, has been fully proved by number of witnesses mentioned above. The learned Magistrate himself inspected the site to find out exact position on the ground and observed that the ventilators, window and spout were very old. Thus, the plaintiff was found to be enjoying easementary rights for last more than thirty years. 19. In deciding the suit, the courts below could not shut their eyes to all other pleadings only because of that handwritten four words addition made in Para 4. Such a matter could not therefore be examined from the standpoint of the plaintiff being owner of both dominant and survient heritage to hold him dis-entitled to decree of injunction on the basis of easementary rights. 20. In view of the above discussion, I do not find any merit in this appeal and same is hereby dismissed. Parties should bear their own costs.Appeal Dismissed. *******