The right to light and air can be acquired dehors the provisions of the Indian Easements Act, 1882, when the person causing the obstruction is a trespasser in the adjoining land or a stranger thereto.

( 1 ) THE defendants preferred the above appeal against the confirming judgment of the Learned Additional district Judge Guntur in A. S. No. 153/78.

( 2 ) THE suit was filed by the respondent herein claiming four reliefs, namely, (1) declaration that the plaintiff is entitled to light and air through the windows W1 and W2 of plaint plan; (2) mandatory injunction directing the defendants to remove the wall constructed to the south of FE line: (3) declaration that the galli FEDHJK is a public galli and (4) permanent injunction restraining the defendants from making constructions in the said galli. The defendants opposed the suit pleading that there is no public galli to the south of plaintiff s property: that they did not encroach into the galli: that the wall complained of was constructed 17 years prior to the suit and that the plaintiff has no easementary right to claim light and air through the windows W1 and W2

( 3 ) THE trial court held that,the plaintiff is entitled for a declaration that he is entitled to receive light and air through the windows W1 and W2:. Therefore, while granting the declaration with regard to the right of the plaintiff to receive light and air, the trial court granted the mandatory injunction directing the defendants to remove the wall constructed to the south of FE Line. The trial court, however, negatived the other two relief on the ground that subsequent to 1957 the galli seems to have been abondoned.

( 4 ) THE defendants preferred AS no. 153/78 on the file of the Additional district Judge, Guntur, The plaintiff did not prefer any cross appeal or cross- objections with regard to the reliefs relating to the galli. The learned Appellate judge held that previously there used to be a public galli, but it ceased to exist from 1957 onwards; that as per the Commissioner s report both the plaintiff and the defendants encroached into the galli and made constructions; that though the rice mill was constructed in 1969 and the suit was filed in 1973, the plaintiff is entitled for declaration with regard to light and air. The learned appellate Judge thus confirmed the decree of the Trial Court.

( 5 ) THE learned counsel for the appellants argued that dehors the provisions of indian Easements Act, there can be no right to light and air; that both the courts held that the plaintiff has no right to the galli and if so, both the courts below exceeded their jurisdiction in granting the relief of declaration in respect of light and air and mandatory injunction to remove the wall constructed to the south of FE line. The learned counsel for the appellants further argued that the plaintiff purchased the open site in 1948 and for the first time he has opened the windows, to the Rice mill in 1969 and as such there is no statutory right vested in the plaintiff to claim easement of fight and air without acquiring the right by way of prescription as provided under the Indian easements ACT, 1882.

( 6 ) BOTH the courts belew have arrived at the finding of fact, relying upon the documentory evidence adduced by the parties, that there existed a public galli between the respective sites purchased by the plaintiff and the defendants, but it was extinguished by 1967 (the date -of Exb. 11 ) and as such the suite galli was not in existence by the date of suit. Though the Trial court found that both the plaintiff and the defendants have encroachad upon the galli, the learned Appellate Judge referring to the admission of the 1st defendant, who examined himself as dw3 held that the plaintiff did not encroach upon the galli and that the defendants alone encroached upon the galli. The lower appellate court, therefore, held that the plaintiff is entitled for removal of the wall which was constructed by the defendants even after the injunction orders were passed by the Trial Court against the 1st defendant and consequently granted the mandatory injunction.

( 7 ) THE learned counsel for the appellants did not cite any decis