The main legal point established in the judgment is that the plaintiff did not need to establish title to the property as the act complained of would inevitably result in nuisance, and the absence of the municipality as a party was not fatal to the plaintiff's suit.

R.V. Vasanthakumar, J.--This Second Appeal is directed against the Judgment and Decree passed in R.A. 6 of 1974 on the file of the District Judge, Bellary wherein the First Appellate Court while dismissing the appeal filed by the defendants confirmed the decree passed in O.S. No. 137/1974 by the Court of the Principal Munsiff, Bellary in favour of the plaintiff.

2. Parties are described as in the original cause.

3. The plaintiff filed a suit against the defendant seeking permanent injunctive relief against the defendant restraining him from putting up any sort of construction on the suit schedule open space.

4. Schedule is detailed as herein:

Open space measuring about 15 feet North to South and 6 feet East to West immediately (on the western side) behind and adjacent to the plaintiffs house bearing No. 53, V Ward Lalakaman, Brucepet, Bellary. Boundaries to the open space has been described as:

East - Plaintiffs house bearing D.No.53;

West - Public land;

North - Open space and house of defendant;

South - House of janakiramaiah.

5. In para V of the plaint, plaintiff has made out his substantive case on the following lines:

"There are two windows and water-spouts in the western wall of the plaintiffs house. The rain water falling on the western portion of the roof of the plaintiffs house is drained through these two water spouts. The two windows referred to above are fixed to two rooms on the western side. One room is used as a kitchen and the other room, as puja-cum-store room. These two rooms receive light and air only through these two windows, There is no other way of getting light and air to these two rooms. The plaintiff is enjoying this right to receive light and air through these two windows since 1928. Even prior to 1928 his predecessors in title were enjoying the said right. Similarly, he and his predecessors in title have been enjoying the right to drain rain water through the two spouts since time immemorial."

Alternatively plaintiff has pleaded a case for nuisance on the following lines paragraph VII of the plaint reads:--

"VII. The plaintiff submits that the suit schedule open space does not belong to the defendant. He has absolutely no right, title or interest in the said, open space. Even if the suit open space does not belong to the plaintiff and is a part of the public lane the defendant has no right in law to put up septic latrines or any other construction on the said open space. The construction of septic tank latrines on the suit open space will cause nuisance and annoyance to the plaintiff and other members of his family. Such a construction will also weaken the foundation of the western wall of the plaintiffs house. Any construction on the suit open space will obstruct passage of light and air through .the two windows, in the western wall of the plaintiffs house and also free flow of rain water through the two water spoutes. The defendant has therefore no right in law put up any construction on the suit open space."

6. The plaintiff's case in short is that he has acquired easementary right by prescription by enjoying for more than 20 years the free flow of air and light to the schedule property described in the schedule and that defendant by constructing the septic latrines close to the schedule property would be obstructing the free flow of air and light to the plaintiffs and thereby causing material injury to the comfortable use of schedule property by the plaintiff and further the two sceptic latrines if constructed would be nuisance and annoyance to the plaintiff and members of his family. Defendant has contested the suit by pleading that the (1) plaintiff has not acquired the easementary right; (2) injunctive suit for nuisance based on prescriptive easement right regarding the inflow of air and light through the windows without a declaratory relief as not maintainable; (3) that there is no obstruction to free flow of air and light to the plaintiffs kitchen and Pooja room through windows: (4