JUDGMENT
P.S. Narayana, J.
1. Smt. Samadani Begum, the unsuccessful defendant in both the Courts below had preferred the present Second Appeal under Section 100 of the Code of Civil Procedure as against the successful plaintiff Dil Mohammed Khan. The said plaintiff filed a suit O.S. No. 1191/89 on the file of XII Assistant Judge-cum-Principal Rent Controller, Hyderabad originally praying for declaration that he is entitled to easementary rights of air and light from the ventilators shown in red colour in the plan attached and marked as A, B and C which are in existence in the Southern wall of the plaintiffs house bearing No. 16-6-686, Osmanpura outside Darwaza, Chaderghat, Hyderabad and for perpetual injunction restraining the defendant, her men, agents and supporters from making any kind of construction adjacent to the Sothern wall of the plaintiffs house bearing No. 16-6-686, as fully described in the schedule, affecting the easementary rights of air and light in any way from the said house at Osmanpura, Hyderabad and subsequent thereto by virtue of an order passed on 1-11-1995 in I .A. No. 35/95, para 4(a) was added and also the relief of mandatory injunction was prayed for directing the defendant to demolish the balcony and other constructions affecting the easementary rights of the plaintiff touching the roof of plaintiff s house No. 16-6-686 on the Southern side of the plaintiffs house.
2. The suit was resisted by the appellant herein/defendant by filing written statement and additional written statement as well. The Court of first instance by Judgment dated 18-12-1996 on appreciation of oral and documentary evidence available on record decreed the suit with costs directing the appellant herein/defendant to remove the balcony for an extent of 5 feet from the Southern wall of the plaintiffs property within two months from the date of order, otherwise the respondent/plaintiff can take steps to remove the same under due process of law. Aggrieved by the said Judgment and decree, defendant preferred A.S. No. 48/ 97 on the file of XII Additional Chief Judge, City Civil Court at Hyderabad-Fast Track Court, and the appellate Court by Judgment dated 23-7-2001 dismissed the appeal with costs and aggrieved by the same, the present Second Appeal is preferred.
3. Sri Shiva Kumar, the learned Counsel representing the appellant/defendant had pointed out that in view of the material available on record inasmuch as the structures are not in existence, the respondent/plaintiff has not been utilizing the adjacent property and the easementary rights relating to light and air and the relief of the mandatory injunction in relation thereto virtually became infructuous and this aspect was not considered by the Courts below. The learned counsel also commented that when the principal question is in relation to determination of easementary rights, non-framing of Issue in relation thereto had caused prejudice to the appellant/defendant. The learned counsel also would point out that when these constructions were regularized without challenging such regularization definitely the respondent/plaintiff is not entitled to the relief of mandatory injunction which is a discretionary relief. The learned counsel in a meticulous way had taken this Court through the original pleading and the subsequent amended pleading, written statement and the additional written statement, report of the Commissioner before the trial Court and the appellate Court, the report of the Commissioner at the appellate stage, both the first report and the second report on revisit and had submitted that in the facts and circumstances of the case, the relief should have been negatived. The learned counsel also had pointed out to certain interlocutory orders passed in the C.M.A. and on application for granting of police aid and had commented that in view of the permission granted, since reasonable space was left, the construction being in accordance with such permission granted by the Court, definitely the appellate Court had totally erred in confirming the Judgment and decree of the trial Court.
4. Per contra Sri Basith Ali Yavar, the learned counsel representing the respondent/plaintiff had pointed out that concurrent findings had been recorded by both the Courts below and even the direction given in the C.M.A. had not been complied with since no reasonable space was left and the appellant/defendant in a high-handed way had proceeded with further construction in violation of the orders of the Court and hence in the light of the concurrent findings recorded by both the Courts below, especially in view of the fact that no substantial question of law would arise for consideration in this Second Appeal, no interference is called for.
5. Heard the Counsel.
6. The questions specified hereunder were pointed out as substantial questions of law to be decided in the present Second Appeal.
1. Whether the Courts below are justified in granting the relief of mandatory injunction without deciding the easementary rights and declaration thereto and without framing an Issue in relation to the principal question of easementary rights.
2. Can the relief of mandatory injunction be sustained especially in the light of non-challenging of the regularization of the constructions made by the appellant/defendant?
3. Whether, the Courts below are justified in granting the relief of mandatory injunction despite the permission granted to proceed with construction after leaving reasonable space by virtue of interlocutory orders?
4. Whether the claim relating to easementary rights and mandatory injunction became infructuous in view of the absence of structures?
7. The parties are referred to as plaintiff and defendant, hereinafter for the purpose of convenience.
8. As already referred to supra, the plaintiff originally filed the suit for declaration of easementary rights of air and light and for perpetual injunction and then had introduced para 4(a) by way of amendment claiming of the relief of mandatory injunction directing the defendant to demolish the balcony and other constructions affecting his easementary rights. It was pleaded in the plaint as hereunder :
9. The plaintiff is the owner of House No. 16-6-686 comprising upon the land, admeasuring 294 sq. yards situated at Osmanpura, outside Darwaza Chaderghat, Hyderabad having purchased the same under a registered sale deed dated 27-8-1963. It was further pleaded that in the Southern wall of the plaintiffs house there are ventilators meant for air and light as is evident from the plan attached to the sale deed. The ventilators are the only source for air and light to the plaintiffs house which is being enjoyed by the plaintiff and his vendor since times immemorial i.e., for more than 20 years. It was further pleaded that on the Southern side of the plaintiffs house bearing No. 16-6-676 there was no construction but now the defendant is trying to make illegal construction without any valid permission from the M.C.H. ignoring the building bye-laws as well as rules arid regulations, that too attaching to the Southern wall of the plaintiffs house for which the defendant tried to dig foundation but on the objection raised by the plaintiff’s sister Dabeer Mustafa, the defendant stopped the construction. The plaintiff apprehends that the defendant may repeat the same illegal act affecting the plaintiffs easementary right of air and light through the ventilators as shown in red colour in the plan and marked as A.B.C. which are the only source of air and light of the plaintiffs house. It was also further pleaded that the defendant tried to dig the foundation attached to the Southern side of the plaintiffs house on 17-3-1989, but on objection made by the sister of the plaintiff by name Dabeer Mustafa, the defendant could not succeed in her attempt and stopped the construction. The defendant is not entitled to make construction attached to the Southern wall of the plaintiffs house. Under municipal law, the defendant has to leave over 5 feet space from the wall of the plaintiffs house. The defendant did not obtain any permission for construction of the house. The defendant is trying to make illegal construction. It was also further pleaded that if the defendant succeeds in making illegal construction affecting the easementary rights of air and light, the plaintiff will be put to great loss and injury.
10. Para 4(a) was introduced in the plaint by virtue of orders passed in I.A. No. 35/95 dated 1-11-1995 and the said para 4(a) reads as hereunder ;
On 23-4-1990 the defendant made construction of balcony and other construction affecting the easementary rights of the plaintiff touching the roof of the plaintiffs house No. 16-6-686, situated at Osmanpura, outside Darwaza, Chaderghat, Hyderabad on the Southern side of the plaintiffs house, during the pendency of the Appeal C.M.A. No. 43/90 on the file of the Additional Chief Judge-cum-II Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad and in spite of subsistence of the injunction order. The said construction is liable to be demolished and the defendant be directed to demolish the same, otherwise a decree for mandatory injunction be granted to demolish the illegal construction.
11. A written statement was filed denying the plaint allegations. It was further pleaded in the written statement as hereunder :
It was pleaded ‘that the allegation in para 1 of the plaint that the plaintiff is the owner of H.No. 16-6-686 at Osmanpura. Hyderabad and that it comprises of 294 sq. yards and the plaintiff purchased the same under registered sale deed dated 27-8-1963 are false and baseless and the defendant denies the same emphatically. The plaintiff himself disclosed that he is a resident of Sirheti Taluq Hukkeri, District Belgaum, Karnataka State which is a far off place from. Hyderabad. It was pleaded that the plaintiff never resided in the H. No. 16-6-686 and he was never seen in the locality. The defendant submits that the alleged H. No. 16-6-686 is not in occupation of anybody since long time even none lit lamps in the said house during the past so many years. Since few days prior to the filing of the above suit, some strangers are staying. The defendant further pleaded that the alleged sale deed dated 27-8-1963 is a sham and fabricated document and it is inadmissible in evidence. The executant of the alleged sale deed is no other than the father of the plaintiff himself and the plaintiff failed to file any authentic link document. As such the alleged sale deed dated 27-8-1963 is highly suspicious and it does not confer any title to the plaintiff over the House No. 16-6-86. Similarly, the area and the description and boundaries mentioned interest alleged sale deed dated 27-8-1963 do not tally with the actual existing features of H. No. 16-6-686. It was pleaded that the allegations in paras 2 and 3 of the plaint are false and mischievous and the defendant denies the same vehemently. The defendant denies the allegations that in the Southern wall of the plaintiffs alleged house there are three ventilators and the same are meant for air and light and the alleged ventilators are the only source for air and light of the plaintiffs alleged house and that is being enjoyed by, the plaintiff and his vendor since the times immemorial for more than 20 years which are fallacious and concocted for the purpose of the above suit. The true facts are that the defendant is the absolute owner and exclusive possessor of H. No. 16-6-676 at outside Chaderghal Darwaza, Hyderabad which is ancestral property of the defendant. The alleged H. No. 16-6-686 is on the extreme North-West corner of the house of the defendant. The entrance door of H.No. 16-6-686 is on the Western side and opens in to a lane towards West. The Southern side boundary/of H.No. 16-6-686 is only 21 feet from East to West adjoining the lane. Similarly, the boundary of H.No. 16- 6-686 on the Eastern side is H.No. 16-6-675. The boundaries of H.No. 16-6-686 mentioned in the plaint schedule are incorrect. The allegation that the H.No. 16-6-676 Is on the Southern side of the plaintiffs alleged house is false. In fact, the house of the defendant bearing No. 16-6-676 is on the Southern side of H.No. 16-6-65. The wall between H.No. 16-6-676 and H.No. 16-6-675 is common and there has been construction on the Northern side of the house of the defendant and drawing rooms, W.C. and bath of the tin shed kitchen of house of defendant are still in existence and the same was are attached to the common wall between H.No. 16-6-676 and 16-6-675. The defendant further pleaded that ventilators never existed in the wall between H.No. 16-6-676 and 16-6-675. The defendant’s house No. 16-6-676 being very old, the defendant commenced reconstruction as per advice of Engineers and permission granted by the M.C.H. The house of the defendant is not on the Southern side of the alleged house of the plaintiff. On the Southern side of the plaintiff house, there is a lane leading to rear side door of house of the defendant. The plaintiff or anybody else did not have easementary rights of air and light from the Northern side of house of the defendant. There is sufficient open space inside H.No. 16-6-686 for air and light. The allegation that the defendant is trying to make illegal construction without valid permission is mala fide and unwarranted. The plaintiff had no right and concern to interfere with the reconstruction of house of the defendant. The defendant further pleaded that one Ghulam Mustafa who resides in the neighbourhood is a quarrelsome person and demanded the defendant to give the material of the old house such as country tiles, flooring stones, rafters etc. and when the defendant did not agree for the same, he started harassing the defendant by making false representation. It was also further pleaded that it is pertinent to mention here that the owner of H.No. 16-6-687 which is on the Western side of H.No. 16-6-686, undertook construction in the year 1973. One Abeda Begum had filed suit O.S. No. 2159/73 in the Court of the III Assistant Judge, City Civil Court, Hyderabad claiming ownership of H.No. 16-6-686. The said Abeda Begum kin her suit made similar allegation as to so called easementary rights of air and light in respect of H.No. 16-6-686 and she had obtained ex parte order of injunction in I.E.A. No. 661/73 in O.S. No. 2159/73. In the said injunction petition order was passed on 27-4-1974 and injunction was vacated by the Court holding that there is a gap of vacant space in H.No. 16-6-686 and the light and air for H.No. 16-6-686 are not affected. The sale deed filed by the plaintiff herein was filed in the said suit by Abeda Begum and her claim was negatived and the suit was dismissed. It was also further pleaded that the plaintiff is not at Hyderabad and the so-called Dabeer Mustafa could not have objected for the construction. The plaintiff does not have easementary right of air and light from the side of house of the defendant and as such the plaintiff had no locus standi to file the suit. It was also pleaded that in H.No. 16-6-686 there are no ventilators as A, B and C and the allegation of the plaintiff are misleading and false. It was further pleaded that the allegations in para 4 of the plaint are equally false and baseless and the defendant denies the same. The defendant is having every right to reconstruct her house and the construction commenced by the defendant is according to law. The allegation that on 17-3-1989 the defendant tried to dig foundation on the Southern side of the alleged house of the plaintiff is false. The other allegation as to Dabeer Mustafa objecting the construction is only a repetition. It was pleaded that the house of the defendant bearing No. 16-6-676 is older than H.No. 16-6-686 and house of the defendant is not servient heritage for claim of air and light from any side.
12. After amending of the pleading, additional written statement was filed pleading as hereunder:
It was pleaded that the allegations made in para 4(a) of the plaint are false and concocted and the defendant denied the same. As stated in the written statement of the defendant, the defendant is the absolute owner and exclusive possessor of H.No. 16-6-676 situated at outside Chaderghat Darwaza and the H.No. 16-6-686 is on the extreme North-West corner of the house of the defendant and on the Northern side of the house of the defendant, there is a house bearing No. 16-6-675. The wall between H.No. 16-6-676 and H.No. 16-6-675 was very old and it fell down. The plaintiff herein without any right and title has been harassing the defendant. It is submitted that against the order in I.A. No. 357/ 89 the defendant filed C.M.A. No. 43/90 on the file of Additional Chief Judge-cum-II Additional Special Judge for SPE and ACB cases, City Civil Court, Hyderabad wherein the order was passed on 23-8-1990 permitting the defendant to make construction to leaving reasonable space. It was pleaded that the plaintiff is fully aware of the said order. Accordingly, the defendant proceeded with the construction. The defendant denied the allegation that on 23-4-1990 she made construction of balcony and other construction affecting the alleged easementary right of the plaintiff towards the roof of the plaintiffs alleged H.No. 16-6-686, situated at Osmanpura Outside Darwaza, Chaderghat, Hyderabad on the Southern side of the plaintiffs alleged house during the pendency of the C.M.A. No. 43/90 and in spite of subsistence of the Injunction order and that is liable to be demolished. The plaintiff is not entitled to seek direction or decree for mandatory injunction to demolish the construction made by the defendant. It was pleaded that the construction made by the defendant is in accordance with law as the same was made within the boundaries of the house of the defendant.
In I.A. No. 389/89 in O.S. No. 1191/89, a Commissioner was appointed and the report of the Commissioner is as specified hereunder :
“In pursuance of warrant of Commission issued by this Hon’ble Court in I.A. No. 389/ 99 in O.S. No. 1191/89 to note down the boundaries of petitioner’s House No. 16-6-686 and also note down the boundaries of respondents House No. 16-6-676, I went to the demised premises after giving notice to the plaintiffs Counsel and defendant’s Counsel fixing the Commission at 5.00 p.m. on 31-8-1989. Both the Counsel along with their parties were present. At 6.00 p.m. the Commission proceedings were started. A work memo was given by the defendant’s Counsel stating to ascertain boundaries of H.No. 16-6-686 and its dimensions and also boundaries of H.No. 16-6-676 and its dimensions. I verified the II premises number and found to be correct as given in the Commission warrant which was also identified by the plaintiff. The suit premises No. 16-6-686 which is having its entrance facing towards Western side. The boundary of the Western side of the suit premises No. 16-6-686 there is a House No. 16-6-687 and 16-6-684 divided by lane.
The boundary on the Southern side of t he suit premises No. 16-6-686, 43 feet from East to West defendant premises partly and suit premises 16-6-865 divided by the lane measuring 21 feet from West to East.
The boundary on the Eastern side of side suit premises No. 16-6-686 is 20 feet wick-road.
The boundary on the Northern side of suit premises No. 16-6-686 there is a door having House No. 16-6-675 facing towards Eastern side it is a lost door.
The defendant contends that the boundary on the Southern side of the suit premises No. 16-6-686 to the extent of 31 feet from East to West is boundary of H.No. 16-6-675 but not 16-6-686.
But the plaintiff objects and says that the Southern side boundary of the premises No. 16-6-686 is 21 + 43 feet which is mentioned above and there is no different house it is one and the same house boundary of H.No. 16-6-686 from West to East.
Defendant identified the premises No. 16-6-676, verified the warrant and as per the warrant the suit premises was found to be correct. The boundaries of the suit premises on the Eastern side of the premises No. 16-6-676 is 20 feet road. The boundary on the Western side of the premises is H. No. 16-6-685 and less.
The boundary on the Southern side of the premises No. 16-6-676 is H. No. 16-6-677. And the boundary on the Northern side of the premises No. 16-6-676 is 16-6-686. Here the defendant contends that the boundary on the Northern side of the premises No. 16-6-676 is 16-6-675. But the plaintiff contends that it is not the House No. 16-6-675 but it in only one House No. 16-6-686 from East to West.”
13, The following issues were settled by the Court of first instance initially :
1. Whether the plaintiff is entitled for perpetual injunction as prayed for ?
2. To what relief ?’
Subsequent to the amendment of the pleading and filing the additional written statement, an additional Issue was framed as hereunder :
“Whether the plaintiff is entitled to mandatory injunction as prayed for ?
14. The G.P.A. of the plaintiff having knowledge was examined as PW-1 and Exs. A-1 to A-4 were marked. In Ex. A-4, Ex. A-4(a) to Ex. A-4(k) portions also were marked. The evidence of DW-1 and DW-2 also had been recorded and Exs. B-1 to B-21 were marked. The Court of first instance on appreciation of all the facts and circumstances came to the conclusion that constructions had virtually infringed the easementary rights of air and light of the respondent/plaintiff and had decreed the suit directing the defendant to remove the balcony to an extent of 5 feet from the Southern wall of the plaintiffs property within two months from the date of order or otherwise the plaintiff can take steps to remove the same under due process of law. The appellant/plaintiff preferred C.M.A. No. 43/90 on the file of Additional Chief Judge, City Civil Court, Hyderabad II Additional Special Judge for SPE and ACB Cases, Hyderabad as against an order dated 7-2-1990 made in I.A. No. 357/89 in O.S. No. 1191/89 on the file of III Assistant Judge, City Civil Court, Hyderabad and the appellate Court in the said C.M.A, at para 11 had stated as hereunder :
“As already noticed the relief prayed for by the petitioner in I.A. No.357/89 is that the appellant should be restrained from constructing a wall touching to his Southern side house wall. Though the contention of the appellant is that the respondent is not residing in his house and it is vacant since a long time, it does not mean that the respondent is not entitled to the suit property. Therefore, the burden on the appellant to show that he is entitled to construct the wall touching the house wall of the respondent. If he makes construction leaving some space thereby allowing reasonable light and air to the house wall of the respondent, there cannot be any objection. The lower Court also did not pass any order restraining the appellant from making any construction on his site but by allowing the petition he was restrained from making use of the Southern side wall of the house of the respondent. Therefore, the lower Court rightly passed the order restraining the appellant from constructing the wall touching to the wall of the respondent if the appellant makes construction leaving some space in between, there cannot be any objection.
In the result, the order of the lower Court is confirmed. But with an observation that the appellant is at liberty to make construction leaving reasonable space between the two walls thereby there is no danger Lo the wall of the house of the respondent. Accordingly the C.M.A. is dismissed. No costs.”
As can he seen from the findings recorded by the Court of first instance, this order also was taken into consideration and findings in relation thereto had been recorded. Yet another order was made in I.A. No. 462/9 1 in O.S. No. 1191/89 on 25-5-1991 wherein Police aid was prayed for and it was stated at para 5 of the said order as hereunder :
“The petitioner filed I.A. 357/89 for issue of a temporary injunction restraining the respondent from making any kind of constructions attaching to the Southern wall of the suit house bearing No. 16-6-686, On contest, that petition was allowed on 7-2-1990. The present respondent preferred an appeal in C.M.A. 43/90 and it was dismissed on 23-8-1990 with an observation that she is at liberty to make constructions leaving reasonable space between the two walls thereby there is no danger to the wall of the house of the present petitioner. In accordance with the said observation, the present respondent is proceeding with the further constructions by leaving a space of about 3 feet. Therefore, she is not making any constructions attaching to the Southern wall of the suit house. Therefore, the petition for police aid is misconceived and hence it is dismissed.”
An Advocate Commissioner was appointed in I.A. No. 216/90 in C.M.A. No. 43/90 and the relevant portion of the first report is as hereunder :
“Immediately after receipt of warrant of Commission I issued notices to both the Counsels fixing the date and time 3-5-1990 at 5.00 p.m. for my inspection. But due to heavy continuous rain on 3-5-1990 commission proceedings could not take place. Again on 4-5-1990 I issued notice to both the Counsels fixing the date and time i.e. 5-5-1990 at 3.00 p.m. for my inspection. On both the occasions Counsel for the respondent/appellant endorsed on the notice as “the respondent is filing petition to set aside order appointing commission. As such the commission may be adjourned as requested.” Commissioner feels that the endorsement made by the Counsel for the respondent/appellant is not in purview of the warrant of commission and proceeded with the execution of warrant of commission.
Work memo was given by the Counsel for the petitioned/defendant.
On 5-5-1990 at 2.50 p.m. I reached the suit premises and waited till 3.00 p.m. for the respondent/appellant or Counsel, but no one turned up or communication received. Proceeded with the execution of warrant of commission.
During my inspection I found the following :
1. Suit premises bearing number 16-6-686 situated at Chaderghat, Hyderabad identified by Sri Gulam Mustafa s/o Mohd. Sirajuddin.
2. Premises of the respondent/appellant also identified as 16-6-676 by Sri Gulam Mustafa s/o Mohd. Sirajuddin. No Municipal number on the door of the premises of the respondent/appellant,
3. There is a space of 57″ between the wall of the house of the petitioner/respondent and the wall of the house of the respondent/appellant.
4. House of the petitioner/respondent roofed with ordinary tiles.
5. House of the respondent/appellant under construction and the balcony of the first floor is under construction. Some iron rods projecting outside of the balcony towards the roof of the house of the petitioner/ respondent.
6. There is a gap of only 6″ between the iron rods of the balcony of the house of the respondent/appellant and the wall of the petitioner/respondent.
7. Balcony of the house of the respondent/appellant covered two ventilators of the house of the petitioner/respondent.
8. Balcony of the house of the respondent/appellant is higher than the ventilators of the house of the petitioner/respondent.
9. Balcony of the house of the respondent/appellant is under construction on the end of the Northern side and the end of the Southern side of the wall of the petitioner/ respondent.
Photographs will clearly show the position of the premises, but the petitioner/respondent is unable to bring the photographer to take photos (petitioner/respondent requested in work memo to take photographs), so that the photos could not be taken.
Either the respondent/appellant or counsel participated in the proceedings.
Even after making the requests by me also, the door of the respondent/appellant did not open. So that I could not enter in the premises of the respondent/appellant and take the correct measurements of the balcony, height of the wall of the respondent/ appellant.
Measurements taken by me are approximately with the help of the petitioner/respondent.
Counsel for the petitioner/respondent and Sri Gulam Mustafa representing the petitioner/respondent participated in the proceedings and also signed on the proceedings.” On revisit, again additional report was filed wherein it was stated by the Commissioner;–
“During my inspection I noted the following additional features which I could not do previously.
1. The suit premises was identified by both the parties in the presence of their counsels.
2. As mentioned in the warrant of commission there is no portico. Parties informed the dispute regarding balcony of the house of the respondent/appellant. So, that I proceeded further. There is a distance of 50″ between the wall of petitioner/respondent i.e. (Southern side wall of the petitioner/respondent, house bearing number 16-6-686 and Northern side wall of the respondent/ appellant’s house bearing number 16-6-676. There is old door on the Western end of the both the walls.
3. On the Western end of the wall of the respondent/appellant there is a bath and lavatory in dilapidated condition which is adjacent to the Southern side wall of the petitioner/respondent.
4. One ventilator is fixed to all of the petitioner/respondent’s house at a height of 120.”
5. There is a space of 36″ between the top of the ventilator of the house of petitioner/ respondent and the bottom of the balcony of the house of the respondent/appellant.
6. There is a space of 18″ between the edge of the balcony of the house of the respondent/appellant on the Northern side.
7. There is a space of 62″ between the bottom of the balcony of the house of the respondent/appellant and the tiled roof of the house of the petitioner/respondent.
8. Length of the wall of the house of the respondent/appellant is at 213″ from Western side to Western (sic) side.
Aggrieved by the judgment and decree of the Court of first instance, A.S. No. 48/97 was filed wherein the appellate Court after framing the point for consideration at para 5 had, discussed the evidence of P.W. 1, D.W. 1 and D.W. 2 and also Exs. A-1 to A-4 and A-4(a) to A-4(k) and Exs. B-1 to B-22 and arrived at a conclusion that the judgment and decree of the Court of first instance need not be disturbed.
15. It is no doubt true that in the C.M.A. referred to supra, liberty was given to proceed with construction by leaving reasonable space. It is not as though this question was left untouched by the Court of first instance. Clear findings had been recorded that the extension of balcony in the first floor made by the defendant would deprive the easementary rights of air and light to the house of the plaintiff and hence the defendant is liable to remove the balcony. This is a finding of fact. In view of the same, the interlocutory orders made in the C.M.A. or in the application for grant of Police aid cannot be taken advantage of and hence the appellant/defendant cannot be permitted to take a stand that in view of those orders, the judgments and decrees of the Courts below are liable to be disturbed in any way. The contention in this regard, in my considered opinion, has no legs to stand for the reason that these are only interlocutory orders which would automatically come to an end in the light of the final disposal of the matter as such. The appellate Court not only had considered the evidence available on record in detail, but also pointed out that apart from D.W. 1, another witness D.W. 2 also was examined and this aspect was lost sight of by the Court of first instance. The oral evidence of P.W. 1, Exs. A-1 to A-4 and A-4(a) to A-4(k) had been appreciated. Likewise, the evidence of D.W. 1 and D.W. 2 and Exs. B-1 to B-21 also had been dealt with Ex. A-1 — the G.P.A. executed by the plaintiff in favour of P.W. 1, Ex. A-2 — the registered sale deed dated 27-8-1963, Ex. A-3 — the English translation of Ex. A-2, Ex. A-4 — plan, Exs. A-4(a) to A-4(k) — portions marked in Ex. A-4 plan and likewise Ex. B-1 the approved plan, Ex; B-2– permit attached to Ex. B-1, Ex. B-3 plan. Ex. B-4 judgment in C.M.A. No. 43/90. Ex. B-5 — permission attached to Ex. B-3, Ex. B-6 — certified copy of the Commissioner’s report, Exs. B-7 to B-18 — photos and negatives, Exs. B-19 and B-20 the sketch plan and Ex. B-21 the original G.P.A. executed by the defendant in favour of D.W. 1, also had been discussed.
16. The mere granting of plans or regularizing the unauthorised constructions would not in any way alter the situation and on that ground, the unsuccessful defendant now cannot advance a ground that the relief of mandatory injunction cannot be granted for removal of such portions which would be offending the structures infringing the easementary rights of the plaintiff in relation to the light and air. It is no doubt true that when the relief of declaration relating to easementary rights of light and air had been specifically prayed for, it would have been more appropriate to settle an issue in this regard. But however, in the light of the findings recorded in detail by the Court of first instance commencing from paras 7 to 11 and also in the light of affirming findings recorded by the appellate Court, this Court is of the considered opinion that both the parties were aware of this principal question and had gone to trial and they have invited the findings relating to the same being conscious of the controversy relating to the easementary rights of light and air only, no prejudice had been caused in view of the fact that the defendant had knowledge of the stand taken by the plaintiff in this regard. Now a contention cannot be putforth at the stage of Second Appeal that the non-framing of issue in this regard is fatal to the case of the plaintiff. In the light of the findings recorded by both the Courts below this Court is satisfied that no prejudice was caused to the appellant herein/defendant in the suit by the non-framing of specific issue relating thereto since the said aspect was clearly discussed while deciding the other issues.
17. It is also pertinent to note that the claim relating to easementary rights of light and air and the regularization of unauthorised constructions would stand on a different footing altogether and merely because the unauthorised constructions had been regularised, it cannot be said that the easementary rights of the plaintiff are in any way affected unless it is otherwise shown that the plaintiff is not entitled to such relief at all.
18. No doubt, yet another contention was advanced that in the light of the non-user of the adjacent building or in view of the non-existence of the structures thereon, the easementary rights relating to light and air no longer exist and they should be taken as became extinct or extinguished and this aspect was not considered by both the Courts below. This is an abortive attempt made by the unsuccessful defendant in both the Courts below just to save the offending structures from being removed which if continue to exist would definitely offend the easementary rights of light and air bf the plaintiff.
18A. Chapter V of the Indian Easements Act, 1882 deals with Extinction, Suspension and Revival of Easements. Extinction can be by any one of the modes specified in Ss. 37 to 48 of the said Act. It is not the case of either of the parties that any such conditions specified by the statutory provisions are satisfied. At any rate, such contention cannot be permitted to be raised at the stage of Second Appeal especially in the light of the concurrent findings recorded by both the Courts below that the extension of balcony is definitely an offending structure infringing the easementary rights of light and air of the plaintiff. The reports of the Commissioners also had been appreciated for the purpose of appreciating the factual aspects. In view of the limitations imposed on this Court, in Interfering with the factual findings recorded by both the Courts below under S. 100 of the Code of Civil Procedure, this Court is not inclined to disturb the said findings recorded by the Court of first instance as well as the appellate Court and the said findings are hereby confirmed.
19. Accordingly, the Second Appeal shall stand dismissed, with costs.