JUDGMENT :

1. This appeal is filed by the defendant in the suit O.S.691/1990 on the file of XXXI Addl. City Civil and Sessions Judge, Bengaluru. He has challenged the judgment and decree dated 18.09.1999 passed in the said suit.

2. By referring to the parties with respect to the position of each of them in the suit, the pleadings can be summarized as below:

The plaintiff is the owner of a house bearing No.203, Kamaraj Road, (Cavalry Road), Bengaluru – 42 and the defendant is the owner of the adjacent house bearing No.202. Towards the North of the plaintiff’s house, there is a compound, the height of which is eight feet and length fourteen feet from East to West. The roof of the defendant’s house was covered with asbestos sheets and its back portion of the roof rested on the plaintiff’s compound. This compound was not a common wall, but it belonged to plaintiff. The defendant did not have any wall on the Southern side of his house. This being the position, the defendant started demolishing his house and at that time caused damage to the plaintiff’s compound. It developed cracks. The plaintiff requested the defendant not to damage his wall, but the defendant threatened him. The plaintiff made a complaint to the City Corporation and also to the police. However the defendant was successful in demolishing his house completely and started constructing three pillars on the Northern side of the plaintiff’s property. The plaintiff came to know that the defendant had obtained sanction plan by giving wrong measurements of his property as North to South 15 ft., whereas the correct measurement was only 12.25 ft. In the plan, defendant had shown set back area of 3.3 ft., towards the North and the South of his property. But at the time of construction, he did not leave the setback. As a result of raising construction without leaving setback, free flow of air and light to the plaintiff’s property got affected. The plaintiff’s house has a veranda provided with grill door measuring about 4.25 x 7.5 ft. There were two windows on both the sides of the door. There was free flow of air and light into the plaintiff’s house through the grill and windows for more than 30 years continuously and the plaintiff had acquired this prescriptive right of easement. The construction taken up by the defendant obstructed the plaintiff’s easementary right. The plaintiff’s property was nearly 100 years old. The defendant, while constructing the southern side of the wall, caused damage to the plaintiff’s wall. The defendant also encroached upon the plaintiff’s property while constructing new building. The plaintiff amended the plaint and stated further that though the court had given a direction to the defendant not to proceed with further construction on the southern side of his property without leaving setback of three feet and that an order of status quo was passed, the defendant went ahead with construction of ground, first and second floors. He did not leave setback. The construction put up by the defendant on the southern side of the property was causing nuisance. Therefore the plaintiff sought a declaration that he had acquired right of easement by prescription with regard to free flow of air and light through the grill door and two windows and permanent injunction to restrain the defendant from constructing two storied building.

3. The stand of the defendant is that he constructed the building as per the approved sanctioned plan. There was an old structure and after demolishing it, he constructed a new building. The plaintiff did not object when the defendant demolished this house. When demolition was going on, the plaintiff wanted to know the manner in which the defendant would go ahead with the construction. If really he had violated the building bye laws and the approved plan, the Corporation of Bangalore would have taken objection. The plaintiff cannot interfere in this matter. Defendant has denied that the plaintiff could assert right of easement for free f