An easement by prescription cannot be claimed where there is an agreement between the parties that the windows and jalies will be closed when construction is raised.

1. - This appeal is directed against the judgment and decree dated May 31, 1974 passed by the learned Additional Civil Judge, Udaipur, whereby, Civil Appeal No. 27 of 1971 was allowed and the judgment and decree of the learned Munsif, Udaipur dated August 5, 1971 dismissing the plaintiff's suit were reversed and the plaintiff's suit for permanent injunction was decreed.

2. The plaintiffs-respondents instituted the suit against the defendants Sadiq Ali and Tayab Ali sons of Ismail with the allegations that the parties belong to one family. They have got house No. 13/56 in the City of Udaipur. The parties are in possession of their respective shares in that house. The plaintiffs alleged that the land measuring 38 x 121/2 feet situated towards the west of the house belongs to the plaintiffs, which is shown in plan (Ex. 1) as ABCD. The plaintiffs alleged that they have got a right to go to their house through this open land. There is a joint chowk towards the east of the main entrance of the house and there is stair-case in the north. There are drains for the discharge of water. It was also alleged that windows and jalies of plaintiffs No. 1 and 3 abut on the open land ABCD. These windows and jalies are being used for more than 60 years. It. was alleged that the plaintiffs want to raise construction on this open land, for which, necessary permission has been obtained from the Municipal Council, Udaipur. The plaintiffs prayed for permanent injunction restraining the defendants from raising any construction over the open land, which may affect the plaintiffs rights claimed in paras 3, 4, 6, 7, 8, 9 and 10 of the plan.

3. The suit was resisted by the defendants. It was alleged by them that the house in question was a joint property of Allah Bux and Isamil, which was partitioned by them in Samvat Year 1971. The plaintiffs No. 1,3 and 4 are in possession of their respective share of Allah Bux and over the share of Ismail, the defendants and plaintiff No. 2 are in possession. It was averred that the open land fell to the share of defendant No. 1 and the same land is in his possession. It was further averred that in the document of Samvat Year 1971, a right of way was kept over the open land but Ismail was conferred a full right of raising construction over this land. The plaintiffs have no other right except the right of passage. As regards the right of light and air through the windows and jalies, alleged by the plaintiffs, it was stated that on raising construction by the defendants, they are liable to be closed under the aforesaid document. It was prayed that the plaintiffs' suit may be dismissed.

4. On the pleading of the parties, two issues were framed. Evidence of the parties was recorded. Thereafter, the learned Munsif dismissed the suit after hearing the parties. He decided both the issues against the plaintiffs. In issue No. 1 he found that the plaintiffs have failed to prove that the open land measuring 38 x 121/2 feet belongs to the plaintiffs. While dealing with the easementary rights claimed by the plaintiffs In Issue No. 2, the Munsif found that the plaintiffs have no such rights as claimed, consequently, the plaintiffs suit was dismissed.

5. Dissatisfied with the judgment and decree, the plaintiffs preferred an appeal, which was heard by the learned Additional Civil Judge. He recorded the finding on Issue No. 1 to the effect that the plaintiffs have failed to prove their exclusive possession and right of ownership over the land in question. Accordingly he upheld the finding on Issue No. 1. Issue No. 2 was decided in favour of the plaintiffs and it was found by the learned Additional Civil Judge that the plaintiff's rights have been fully proved as they have been acquired by them on account of their enjoyment for more than 20 years, as of right and consequently, the defendants were restrained from making any interference in the enjoyment of right of way through the disputed land shown in the plan ABCD (Ex. 1). The def