1. - This second appeal by the plaintiff-appellants has been filed against the judgment and decree dated 23.9.2008 passed by the Addl. Distt. Judge No. 3, Jaipur City in Civil First Appeal No. 38/2005 whereby the appeal filed by the present plaintiff-appellants against the judgment and decree dated 12.9.2005 passed by the Additional Civil Judge (Junior Division), Jaipur City in Civil Suit No. 209/2003 for declaration and permanent injunction with regard to the right of easement has been dismissed.

2. Briefly stated the facts of the case are that the plaintiff-appellants filed a civil suit for declaration of the easementary right for getting the light and air on account of the accrual of the easementaiy right for getting the same through ventilators, windows and doors of the appellant's house since 1973 situated towards the eastern side which has been infringed by the defendants by construction of garage portion of the three stories towards the common wall and for infringement of the same, further claimed injunction for demolition of the disputed portion with the averment in the plaint that the plaintiffs are the owner of Plot No. B-148-A, Anandpuri, Adarsh Nagar, Jaipur, the description of which has been mentioned in para 1 of the plaint whereas the defendant is the owner of adjacent Plot No. B-147, Anandpuri, Adarsh Nagar, Jaipur which has been shown in the annexed map as ABCD. The plaintiffs further averred that in the year 1973, the plaintiff No. 2 constructed basement and the ground floor and is residing therein. In the basement of the plaintiffs, some ventilators are situated towards the eastern and northern side and there are east facing rooms of which the doors, windows, ventilators etc. are also on the eastern side from which the plaintiffs are getting light and air since 1973 and thus, acquired easementary right before 2003 when the defendants started construction on their plot No. B-147. It is further averred in the plaint that the defendants started construction of common wall measuring 20' x 10' and when they were asked not to do so, they did not stop and constructed the said portion up to three storey on account of which air and light has been reduced and some darkness has occurred in the portion of the plaintiffs. Thus, plaintiffs' easementary rights have been infringed, therefore, the said construction be demolished by grant of permanent injunction and the defendants be further directed to make construction in Plot No. B-147 after leaving 5' distance.

3. The defendants filed their written statement and denied the aforesaid averments. It was denied that the plaintiffs were having any easementary rights. The defendants also filed a counter claim of 6" land which has been encroached upon by the plaintiffs and further averred that the plaintiffs have no right to get light and air from their portion. The defendants also averred that the garage portion was constructed earlier as per the Building Bye Laws and in respect of which the earlier suit of the plaintiffs was also dismissed. The basement constructed by the plaintiffs is contrary to the Bye Laws, therefore, the defendants have also lodged counter claim and claimed mandatory injunction for demolition of the construction of 5' x 20' portion towards the East-Western side as well as 10 x 72' towards the East-Western and North-Southern, with respect to the said disputed portion in the written statement.

4. On the basis of the pleadings of the parties, following six issues were framed out of which Issues No. 1, 2 and 3 are regarding easementary right of the plaintiffs and the Issues No. 4 and 5 are with regard to the counter claim lodged by the defendants:

"1- vk;k okni= esa of.kZr rF;ksa ds ifjizs{; esa oknhx.k dks vius IykWV la[;k ch&148, esa iwoZ dh rjQ ls gok jks'kuh izdk'k dk lq[kkf/kdkj izkIr gks x;k gS\

2- vk;k opknh izfroknhx.k ls layXu uD'ks esa yky frjNh/kkfj;ksa ls tks 10 QhV pkSM+k] 21 QhV yEck ,oa 25 QhV mapk fuekZ.k djk fy;k gS] mls rqMokus dk vf/k