ORDER :

Mahendar Kumar Goyal, J. - This civil second appeal, which is reported to be time barred by 91 days, is accompanied with an application under Section 5 of LIMITATION ACT .

2. For the reasons stated in the application, the same is allowed. Delay in preferring the second appeal is condoned.

3. This civil second appeal has been preferred by the appellant/defendant (for brevity, "the defendant") against the judgement and decree dated 03.03.2020 passed by learned Additional District Judge No.1, Bharatpur (for brevity, "the learned appellate Court") in Civil Regular Appeal No.4/2019 (11/2019) CIS No.11/2019 whereby, while dismissing the appeal, the judgement dated 24.12.2018 passed by learned Senior Civil Judge, Bharatpur (for brevity, "the learned trial Court") decreeing the Suit No.73/2016 for permanent injunction, has been upheld.

4. The relevant facts in brief are that the respondents/plaintiffs (for brevity, "the plaintiffs") filed a suit for permanent injunction against the defendant stating therein that they were under ownership and possession of the subject property as described in Para 1 of the plaint situated in Mohalla Mojiram, Behind Old Post Office, Bharatpur which they purchased vide registered sale deed dated 18.08.1994 from its erstwhile owner. It was averred that towards its western side, there is a public gali (lane) and thereafter, defendant's house. It was stated that towards the western lane, there exist windows/ventilation of the plaintiffs' house for last about 50 years and they have acquired an easementary right of light and air. Alleging that the defendant wanted to close their windows and ventilation raising construction of a wall abutting their western wall, the decree as aforesaid was prayed for.

5. The defendant in his written statement denied existence of any public lane in between the properties of the parties. It was stated that after removing the tin shade existing on the subject land, he has raised certain pucca construction thereon.

6. On the basis of pleadings of the parties, the learned trial Court framed four issues including relief.

7. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgement dated 24.12.2018 and the civil first appeal preferred there against by the defendant has been dismissed by the learned appellate Court vide its judgement dated 03.03.2020.

8. Assailing the impugned judgement and decree dated 03.03.2020, learned counsel for the appellant would submit that the learned Courts erred in not framing the issue with regard to easementary right of the plaintiffs despite specific averment in this regard in the plaint and its denial by him. He submits that the learned Courts erred in relying upon the Commissioner Report, Ex. A1 which did not reveal existence of any window/ventilation in the western wall of plaintiffs' house. Inviting attention of this Court towards the cross-examination of Shivshankar (PW1), learned counsel submits that he has admitted therein existence of "Charpeta" (abutting wall) of the defendant's house towards the western side of the subject property. Lastly, learned counsel submits that the learned Courts have failed to appreciate that from the Ex. A1 and Ex. A2, he was able to establish non-existence of the public lane towards the western side of the plaintiffs' property. He, therefore, prays that the civil second appeal be allowed, the judgement and decree dated 03.03.2020 be quashed and set aside and the suit filed by the plaintiffs be dismissed.

9. Heard. Considered.

10. While deciding the issues no.1 and 2 pertaining to existence of windows and ventilation in the western wall of plaintiffs' house through which they are getting light and air for last about 50 yea