Judgment : 1. Heard Shri Vengurlekar, learned Counsel appearing for the Appellants and Shri Melo, learned Counsel appearing for the Respondents. 2. The above Appeal has been admitted on 13.07.2007, on the following substantial question of law: (i) Whether it is absolutely necessary to make prayer in the plaint for declaration regarding the existence of right of easement by prescription and if such prayer is not made, whether the suit solely seeking permanent injunction, is bound to fail? 3. During the course of the hearing of the above Appeal, Shri Melo, learned Counsel appearing for the Respondents has argued in support of the Cross Objection filed by the respondents. After hearing both the learned Counsel with that regard, the following additional substantial questions of law are framed by consent of the learned Counsel : (a) Could an easementary right by prescription be declared by the First Appellate Court, when a specific bar is created under section 17(b) of the Indian Easements Act, 1882? (b) In absence of pleading nuisance and substantial damage caused to the appellants, could the First Appellate Court declare that the appellants have acquired an easementary right by prescription? 4. The matter was thereafter argued on all the aforesaid substantial questions of law. 5. Before I proceed to examine the rival contentions in connection with the above substantial questions of law, it would be appropriate to briefly state the facts of the present case. The appellants filed a suit on the ground that there is a property known as "Predio Denomindo Villa Raguela” situated at Caranzalem within the panchayat area of Taleigao and surveyed under no.43/5. The said property belonged to one Eulalia Monteiro. It is further their case that the mundkarial houses bearing No. E-237 to E-240 and E-243 are located in the suit property. It is further their case that in the year 1981 the said property was sub divided into plots. The house of the appellants was shown in plot M-1. In the sub division plan, the said plot M-1 comprises of an area of 363.50 square metres. The said plot was purchased by the appellants by a sale deed dated 23.01.1987. The said sale deed has been duly registered. The house of the appellants was shown in plot M-1. In the sub division plan, the said plot M-1 comprises of an area of 363.50 square metres. The said plot was purchased by the appellants by a sale deed dated 23.01.1987. The said sale deed has been duly registered. It is further the case of the appellants that towards the north of the said plot purchased by the appellants, there is another plot M-2 with an area of 414.95 square metres wherein there is a house presently occupied by the respondents. The distance between the northern boundary and the northern wall of the house of the appellants is approximately 40 cms from the northern boundary of the plot of the appellants. The roof on the rear portion of the house of the appellants slopes towards the northern and the southern eaves drops of the roof sloping towards the north fall on the boundary between the plot of the respondents and the plot of the appellants. It is further their case that there is a window, door and an open verandah in existence from the time the said house was built for the last more than 50 years which was continuously and uninterruptedly occupied by the appellant no.1 and his parents. It is further their case that as such the appellants have acquired an easement right in respect of the enjoyment of light and air through the windows and door and they are also entitled to enjoy free access to the said door. It is further their case that the respondents under the pretext of constructing the compound wall constructed a room attached to the rear portion of the house. By such construction, the respondents have obstructed the light and air enjoyed by the appellants through the said windows. It is further the contention of the appellants that the respondents are not entitled to carry out such construction and as such filed a suit for mandatory injunction to demolish the dead wall constructed by the respondents along with the door within a distance of 1.50 metres from the northern boundary of the appellants plot and to restore it to its original condition. The suit was resisted by the respondents. According to the respondents, the sister of the appellant no.1 is one of the co-owners of the plot and was necessary party. The suit was resisted by the respondents. According to the respondents, the sister of the appellant no.1 is one of the co-owners of the plot and was necessary party. It is the case of the respondents that they are not aware of the sub division of the property into plots. It is further their case that the appellants have extended their house towards the northern end by encroaching upon half a metre passage existing between two houses. It is further their case that the rear portion of the house which has the roof slopping in the northern and southern direction was intentionally constructed by the appellants. It is further the case of the respondents that they had lodged a protest against the said construction and the opening of the windows. It is further the case of the respondents that the appellants cannot claim acquisition of right of light and air through the said opening made illegally. It is accordingly submitted that the suit be dismissed. The Trial Court has framed three issues and after appreciating the evidence on record has come to the conclusion that the appellants have failed to prove that they have been openly, continuously and uninterruptedly using and enjoying the light and air from the windows, door and open portion of the windows. The learned Judge also came to the conclusion that the respondents have established that the windows, verandah and door were recently, illegally constructed and erected by the appellants and therefore they cannot claim any easement. The Trial Court as such dismissed the suit filed by the appellants by judgment and decree dated 06.02.2006. The Lower Appellate Court has framed the points for determination and after re-appreciating the evidence on record has come to the conclusion that the appellants have established the acquisition of right of the light and air as an easement through the windows from open space between the northern boundary and the window and verandah. The learned Judge also came to the conclusion that the construction has been put up by the respondents obstructing such enjoyment. The learned Judge also found that the suit is not maintainable without seeking a declaration. Consequently, the appeal came to be rejected. Being aggrieved by the said judgment, the appellants/plaintiffs filed the above appeal. On being served the respondents filed their cross objections on which count the aforesaid substantial questions of law have been framed. 6. The learned Judge also found that the suit is not maintainable without seeking a declaration. Consequently, the appeal came to be rejected. Being aggrieved by the said judgment, the appellants/plaintiffs filed the above appeal. On being served the respondents filed their cross objections on which count the aforesaid substantial questions of law have been framed. 6. On perusal of the records, admittedly the appellants are claiming a right of light and air as an easement. Prior to the purchase of the property, it is not in dispute that the appellants were occupying the house as a mundkars. In such circumstances, it would have to be examined whether any such easementary right of light and air can accrue to the appellants during the said period. It is the contention of the appellants that in view of the construction of the compound wall they have been deprived of the light and air which they have been enjoying through the open land in between two houses. It is not disputed that the window on the northern side of the house is towards the open land existing up to the northern boundary of the plot of the appellants. In this connection, Section 17(b) of the Easement Act, reads thus: “17. Rights which cannot be acquired by prescription.- Easements acquired under Section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired:- (a) …...................... (b) a right to the free passage of light or air to an open space of ground; (c) …..................... (d) …......................” On plain reading of the said provisions, such free passage of light and air to an open space cannot be so acquired. In the present case, the Lower Appellate Court while coming to the conclusion that the appellants have established their claim of prescriptive right to use unobstructed light and air, failed to note the said provisions of law to come to such conclusion. Even it was the case of the appellants as pointed out by the Lower Appellate Court that they are enjoying light and air from the open space from behind the house of the respondents. Considering the said aspect, in view of the said provisions of the Easement Act, the question of claiming any prescriptive right to use the light and air from such open space would not arise. Considering the said aspect, in view of the said provisions of the Easement Act, the question of claiming any prescriptive right to use the light and air from such open space would not arise. Besides that the appellants were occupying the house as mundkars and as such any such right of light and air which was available to such house was on behalf of the owner of such house. Considering that the property and the house was purchased by the appellants in the year 1987, and the suit was filed in the year 1992 the question of claiming any prescriptive right of easement of light and air would not arise as the period of 20 years as provided in Section 15 of the Easement Act had not elapsed. The findings of the Lower Appellate Court that the appellants have acquired prescriptive right of light and air in terms of the provisions of Section 15 of the Easement Act are not well founded and deserve to be quashed and set aside. Apart from that, on perusal of the pleadings, I find that there is no averment therein to show that on account of such obstruction of light and air any nuisance has occasioned to the appellants. There is no material on record to show that such right was being exercised as of right to claim a right of user by prescription. 7. Apart from that, the rights of mundkar are regulated by the provisions of Mundkar Act and there is nothing therein to suggest that the appellants could claim a right of prescription on the basis of user of light and air to the dwelling house. In such circumstances, the additional substantial questions of law framed by this Court on the basis of cross objection filed by the respondents are to be answered in favour of the respondents. 8. Even on perusal of the plaint, there is no specific pleadings by the appellants as to the extent of such light and air which was being enjoyed by the appellants through the said window and verandah which lead to specific discomposure on account of the acts committed by the respondents. This is very much necessary in order to ascertain whether the appellants are entitled for an injunction as prayed for in the suit. This is very much necessary in order to ascertain whether the appellants are entitled for an injunction as prayed for in the suit. As there is pleading to that effect, the Lower Appellate Court has not examined the said aspect while passing the impugned judgment. 9. With regard to the substantial question of law framed on the basis of the appeal preferred by the appellants, I find that the said aspect would not necessarily be looked into in view of the findings on the substantial questions of law framed on the basis of cross objections filed by the respondents. Be that as it may, the learned Lower Appellate Court while deciding the said aspect has relied upon the judgment of the this Court reported in AIR 2004 Bombay 89 in the case of Jivanlal Vs Krishnarao D. Sathone, to come to such conclusion. The substantial question of law as such is answered accordingly. 10. In view of the above, the appeal stands rejected. Cross objections are partly allowed in above terms. Consequently, Second Appeal stands disposed of accordingly.