JUDGMENT 1. - This second appeal by the plaintiff-appellants has been filed against the judgment and decree dated 23.9.2008 passed by the Addl. Distt. Judge No. 3, Jaipur City in Civil First Appeal No. 38/2005 whereby the appeal filed by the present plaintiff-appellants against the judgment and decree dated 12.9.2005 passed by the Additional Civil Judge (Junior Division), Jaipur City in Civil Suit No. 209/2003 for declaration and permanent injunction with regard to the right of easement has been dismissed. 2. Briefly stated the facts of the case are that the plaintiff-appellants filed a civil suit for declaration of the easementary right for getting the light and air on account of the accrual of the easementaiy right for getting the same through ventilators, windows and doors of the appellant's house since 1973 situated towards the eastern side which has been infringed by the defendants by construction of garage portion of the three stories towards the common wall and for infringement of the same, further claimed injunction for demolition of the disputed portion with the averment in the plaint that the plaintiffs are the owner of Plot No. B-148-A, Anandpuri, Adarsh Nagar, Jaipur, the description of which has been mentioned in para 1 of the plaint whereas the defendant is the owner of adjacent Plot No. B-147, Anandpuri, Adarsh Nagar, Jaipur which has been shown in the annexed map as ABCD. The plaintiffs further averred that in the year 1973, the plaintiff No. 2 constructed basement and the ground floor and is residing therein. In the basement of the plaintiffs, some ventilators are situated towards the eastern and northern side and there are east facing rooms of which the doors, windows, ventilators etc. are also on the eastern side from which the plaintiffs are getting light and air since 1973 and thus, acquired easementary right before 2003 when the defendants started construction on their plot No. B-147. It is further averred in the plaint that the defendants started construction of common wall measuring 20' x 10' and when they were asked not to do so, they did not stop and constructed the said portion up to three storey on account of which air and light has been reduced and some darkness has occurred in the portion of the plaintiffs. Thus, plaintiffs' easementary rights have been infringed, therefore, the said construction be demolished by grant of permanent injunction and the defendants be further directed to make construction in Plot No. B-147 after leaving 5' distance. 3. The defendants filed their written statement and denied the aforesaid averments. It was denied that the plaintiffs were having any easementary rights. The defendants also filed a counter claim of 6" land which has been encroached upon by the plaintiffs and further averred that the plaintiffs have no right to get light and air from their portion. The defendants also averred that the garage portion was constructed earlier as per the Building Bye Laws and in respect of which the earlier suit of the plaintiffs was also dismissed. The basement constructed by the plaintiffs is contrary to the Bye Laws, therefore, the defendants have also lodged counter claim and claimed mandatory injunction for demolition of the construction of 5' x 20' portion towards the East-Western side as well as 10 x 72' towards the East-Western and North-Southern, with respect to the said disputed portion in the written statement. 4. 4. On the basis of the pleadings of the parties, following six issues were framed out of which Issues No. 1, 2 and 3 are regarding easementary right of the plaintiffs and the Issues No. 4 and 5 are with regard to the counter claim lodged by the defendants: " 1- vk;k okni= esa of.kZr rF;ksa ds ifjizs{; esa oknhx.k dks vius IykWV la[;k ch&148, esa iwoZ dh rjQ ls gok jks'kuh izdk'k dk lq[kkf/kdkj izkIr gks x;k gS\ 2- vk;k opknh izfroknhx.k ls layXu uD'ks esa yky frjNh/kkfj;ksa ls tks 10 QhV pkSM+k] 21 QhV yEck ,oa 25 QhV mapk fuekZ.k djk fy;k gS] mls rqMokus dk vf/kdkjh gSa\ 3- vk;k izfroknhx.k oknhx.k ds IykWV uacj ch&148, ds iwohZ nhokj ftls layXu uD'ksa esa ,Dl] okbZ ls n'kkZ;k x;k gS ls izfroknhx.k vius IykWV ch&147 esa 5 QhV dh nwjh NksM+s fcuk fuekZ.k djkus dks mrk: gS o pjisVoka fuekZ.k oknhx.k dh nhokj ls djus dks mrk: gS\ 4- vk;k tokcnkok esa of.kZr rF;ksa ds ifjizs{; esa izfroknhx.k oknhx.k ls IykWV uacj ch&148, ds nf{k.kh vksj ikap QqV mRrj nf{k.k o 20 QhV iwoZ ls if'pe esa gks jgh lEiw.kZ rkehjkr dks rqM+okus ds vf/kdkjh gS ,oa blh IykaV ds iwohZ vkSj 10 QhV iwoZ if'pe o 72 QhV mRrj nf{k.k rkehjkr dks rqMokus dk vf/kdkjh gS\ 5- vk;k oknhx.k izfroknhx.k la[;k 1 dks nhokj cukus ls jksdus dks vuqfpr :i ls mrk: gS\ " 5. In support of their case, the plaintiff No. 2 Nathu Lal Saini examined himself as PW-1 and further got examined Basant Kumar Saini as PW-2 and further produced documentary evidence Ex.l to Ex.20. The defendants examined DW-1 Sanjay Jain and in documentary evidence, produced the sale deed Ex.A-1. 6. After appreciating the evidence of both the parties, the trial Court decided Issues No. 1,2 and 3 against the plaintiffs and Issues No. 4 and 5 against the defendants. On the basis of the said conclusion, the trial Court dismissed the suit of the plaintiffs as well as counter claim of the defendants, vide its judgment and decree dated 12.9.2005. 7. Against the said judgment and decree, the plaintiffs filed first appeal. On the basis of the said conclusion, the trial Court dismissed the suit of the plaintiffs as well as counter claim of the defendants, vide its judgment and decree dated 12.9.2005. 7. Against the said judgment and decree, the plaintiffs filed first appeal. After hearing both the parties, the lower appellate Court upheld the findings on Issues No. 1,2 and 3 and while upholding the said findings on Issues No. 1,2 and 3, the lower appellate Court has considered Section 33 of The Indian Easements Act, 1882 (in short 'Easements Act') according to which, substantial damage has to be proved for claiming easementary right and permanent injunction. I would also like to add that Section 33 has to be read with Section 35 of the Easement Act. The lower appellate Court has considered the judgment of this Court in Mst.Dakhan Bai v. Seth Dhanraj, 1959 RLW 127 in para 9 of which it has been held that the plaintiff has to prove substantial damage to claim easementary right as well as injunction and further considered evidence of the plaintiff No. 2 who admitted in his cross-examination that he is living in the house peacefully and is also getting air and light from the eastern side. 8. Submission of counsel for the plaintiff-appellants is that a perusal of the whole of statement of the plaintiff No. 2 witness PW-1 would reveal that the present case is of substantial damage but both the Courts below have erred in not giving the said finding of substantial damage. 9. 8. Submission of counsel for the plaintiff-appellants is that a perusal of the whole of statement of the plaintiff No. 2 witness PW-1 would reveal that the present case is of substantial damage but both the Courts below have erred in not giving the said finding of substantial damage. 9. Before proceeding further, it is necessary to quote the relevant portion of the judgment of the appellate Court which is as follows: " izR;FkhZ ds fo}ku vf/koDrk dk ;g rdZ jgk gS fd lq[kkf/kdkj vf/kfu;e dh/kkjk 33 ds rgr oknh dks ;g fl) djuk gksrk gS fd mls dksbZ lkjHkwr {kfr gq;h gks ;fn dksbZ lkjHkwr {kfr fl) ugha dh gS rks og lq[kkf/kdkj izkIr ugha dj ldrk gSA mUgksaus vius rdksZ ds leFkZu esa Jherh nka[kk ckbZ cuke~ lsB/kujkt] vkj0,y0MCY;w0 1959 ist 127 dh uthj is'k dh gS ftlesa ;g fl)kUr izfrikfnr fd;k gS fd oknh dks izdk'k o gok dk lq[kkf/kdkj izkIr djus ds fy, mls ;g fl) djuk gksxk fd mls lkjHkwr :i ls {kfr gq;h gks tSlk fd lk{; vk;h gS mlls izdV gksrk gS fd oknh vihyk.V dks dksbZ lkjHkwr {kfr ugha gS] cfYd mlus ftjg esa ;g Lohdkj fd;k gS fd og mDr edku esa vkjke ls jg jgk gS rFkk mls gok o jks'kuh iwoZ dh rjQ ls izkIr gks jgh gS vr% bl dkj.k ls fo}ku v/khuLFk U;k;ky; us tks ;g ekuk fd oknh dk dksbZ lq[kkf/kdkj izkIr ugha gS] mudk ;g fu"d"kZ fof/k ,oa lk{; ds vuqlkj gS ftldh iqf"V dh tkrh gS rFkk izfroknh us tks fuekZ.k dk;Z fd;k gS og fuekuqlkj fd;k gS rFkk bl dkj.k ls og mDr fuekZ.k dks rqMokus dk vf/kdkjh ugha gSA vr% rudh la[;k 1 o 2 ij fo}ku v/khuLFk U;k;ky; }kjk tks foospu fd;k gS og fof/kuqlkj lgh gS ftlesa dksbZ fof/k o lk{; dh =qfV ugha gSA vr% bl dkj.k ls mDr rufd;ksa ij ikfjr fu"d"kZ dh iqf"V dh tkrh gSA " Emphasis supplied 10. I have gone through record of the second appeal as well as of the Courts below and further considered the submissions of counsel for the parties. 11. It is relevant to quote para 9 of the judgment of this Court in Mst.Dakhan Bai v. Seth Dhanraj (supra) . I have gone through record of the second appeal as well as of the Courts below and further considered the submissions of counsel for the parties. 11. It is relevant to quote para 9 of the judgment of this Court in Mst.Dakhan Bai v. Seth Dhanraj (supra) . The same is as follow: "Learned counsel for the appellants has urged on the other hand that the respondent would have got the right to get this room demolished only if he could prove substantial damage to his rights as required by Section 33 of the Indian Easements Act and since substantial damage has not been proved, he has got no right to get this room demolished. I have given due consideration to these arguments and in my opinion, the contention raised by learned counsel for the respondent is not tenable. The argument raised by learned counsel for the respondent is no doubt supported by Nandkishore Balgovan v. Bhagubhai Pranavlabhdas which he has referred. This view was also affirmed by Kunnilal v. Kundan Bibi . In these two cases, it was held that "where a plaintiff is claiming relief upon the ground that his prescriptive right to the passage of light and air to a certain window has been interfered with, it is enough to show that the right has in fact been interfered with. The plaintiff is not obliged to go further and show that he has suffered actual damage thereby. The attention of the learned Judges in both the cases was drawn to the principles enunciated in Colls v. Home and Colonial Stores Ltd., 1904 A.C. 179 and Kine v. Joly, 1905,1 ch., 480. But it was observed that in view of the express language of Section 28(c) of the Indian Easements Act, they could not be taken into consideration. It may be pointed out that the view taken in Kunnilals case was not followed in Suraj Narain v. Kalyandas in the same High Court. In that case it was observed that Aikman J., who decided Kunnilals case," entirely ignored Section 35(a) Easements Act. Section 35 enacts when an injunction may be granted. Clause (a) refers to a mandatory injunction and Clause (b) to a perpetual injunction. The section is unfortunately worded. In Clause (a) a mandatory injunction is allowed when compensation for disturbance might be recovered under Section 33. Section 35 enacts when an injunction may be granted. Clause (a) refers to a mandatory injunction and Clause (b) to a perpetual injunction. The section is unfortunately worded. In Clause (a) a mandatory injunction is allowed when compensation for disturbance might be recovered under Section 33. The word "when" must be construed to mean "when and where", because it would be useless to prescribe that an injunction could be granted when damages can be claimed under Section 33, if damages under Section 33 could not be claimed. The effect of the clause is therefore, only to allow an injunction where substantial damage is proved. This conclusion also follows from Section 54 Specific Relief Act, which only allows an injunction when pecuniary compensation would not afford adequate relief. It follows that an injunction is only an alternative within the discretion of the Court and is not an independent form of relief". Thus it was held in the above case that "an injunction to restrain the disturbance of an easement of light and air can only be granted where substantial damage is-proved to have been caused". This view is supported by the observations of their Lordships of the Privy Council in P.C.E. Paul v. W.Robson . In that case, their Lordships referred to Colls v. Horn and Colonial Stores Ltd., 1904 A.C. 179 and Kine v. Jolly, 1905, 1 Ch. 480 and held that "the owner of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is, what is required for the ordinary purposes of inhabitancy or business of the tenant according to the ordinary notions of mankind". Learned counsel for the respondent has urged that in the above case their Lordships did not refer to Section 28 of the Indian Easements Act and perhaps their attention may not have been drawn to it. It is true that there is no reference to Section 28 in their judgment, but for that reason alone it cannot be assumed that the provisions of that statutory law were not pointed out to their Lordships or that the said section was not in their view. It is true that there is no reference to Section 28 in their judgment, but for that reason alone it cannot be assumed that the provisions of that statutory law were not pointed out to their Lordships or that the said section was not in their view. In Jamnadas v. Gulraj , it was held by a learned Judge of this Court that "in a suit for a perpetual injunction restraining the defendant from obstructing light and air of a window of the plaintiffs house the question to be considered is whether the act of the defendant in obstructing the light and air of the plaintiffs ancient window can be considered to be a nuisance. It is for the plaintiff to show what specific injury is caused to him and when he has failed to prove this, he cannot succeed on the mere presumption that by closing down of the disputed window, specific injury should be deemed to have been caused to the plaintiff... Mere closing down of the ancient window cannot by itself be deemed to have caused substantial injury to the plaintiff. In the above case, the learned Judge has referred to the observations of their Lordships of the Council in P.C.E. Pauls case. I respectfully agree with this view and have no reason to differ from it. Under these circumstances, it was necessary for the plaintiffs to show that the construction of the room by the defendant on the first floor had caused substantial damage to the air and light which he was receiving in his room. Both the Courts below have not given their finding to the effect that the construction of this room had substantially diminished the quantity of air and light passing to the plaintiffs room through the ventilator which is said to be obstructed. I, therefore, think it proper to allow the defendant's appeal to the extent that the decree of both the Courts below ordering the defendant to demolish the room which he has constructed should be set aside. Learned counsel for the appellants has not challenged the remaining part of the decree and therefore, it is maintained. In other words, the defendant (the appellants) will not make any construction on the remaining part of his second storey and he will not raise parapet walls on the roof of the ground floor above high." 12. Learned counsel for the appellants has not challenged the remaining part of the decree and therefore, it is maintained. In other words, the defendant (the appellants) will not make any construction on the remaining part of his second storey and he will not raise parapet walls on the roof of the ground floor above high." 12. On consideration of the entire record in the light of the aforesaid judgment of this Court, I am of the view that the plaintiffs have not been able to prove substantial damage with regard to the obstruction in the light and air from the eastern side, rather, the plaintiff No. 2 has admitted that he is living peacefully and getting light and air from the eastern side. Therefore, the findings of the trial Court as well as lower appellate Court on Issues No. 1,2 and 3 have rightly been given. 13. No substantial question of law is involved in this second appeal. The same is therefore dismissed.Appeal Dismissed. *******