The plaintiff's failure to prove the defendants were raising construction in a manner causing imminent obstruction to his easementary right of air and light led to the dismissal of the suit.

JUDGMENT :

Sureshwar Thakur, J.

The plaintiff's suit, bearing Civil Suit No. 143/1 of 2006, claiming therein, rendition, of, a decree, of, permanent prohibitory injunction vis-a-vis, the suit khasra numbers, and, against the defendants, stood dismissed, hence by the learned trial Court, (i) and, in an appeal, bearing Civil Appeal No. 2-AK/13 of 2014, carried therefrom, by the plaintiff, before the learned first appellate Court, the latter Court also, thereon made, a verdict hence affirming, the, verdict, of, dismissal, of, the plaintiffs' suit, as pronounced, by the learned trial Judge concerned. The plaintiff, being aggrieved, by the concurrently recorded verdicts, respectively, by, the learned trial Judge, and, by the learned first appellate Court, hence, for, begetting reversal(s) thereof, has instituted, the instant appeal, before this Court. As detailed in para No.1 of the plaint was abadi deh land where over they were having their residential houses. His double storey house was situated on point =B' whereas the house of the respondents was situated on point =C'. In between their houses there was a vacant space 20 feet in length and 2 feet vide on the back side and one feet wide on the front side, as specifically depicted in the enclosed sketch map. Adjacent to their house, the respondents were also having a tin roof 6 feet hight kitchen built in mortar masonry. There was also a window in his house opening towards the kitchen of the respondents, through which he had been receiving air and sunlight. By way of prescription, it had matured into easementary right. On 25.9.2006, the respondents threatened to raise construction over the place where their kitchen was situated and in this process, they also threatened to encroach upon the aforementioned vacant place and extend the projection of his slab over the slab of his house. But during the pendency of the suit and despite of the ad-interim injunction order, respondents by totally defying the court order raised the construction and thereby encroached upon the vacant space by extending the slab and thereby also blocked the air and light which used to be received by him through the window of his house. On the premises of the above, he sought a decree of mandatory injunction for demolition and removal of the overhanging projection raised over and above portion D to D of the enclosed site plan.

3. Respondents filed joint written statement and therein they raised preliminary objections of locus-standi, cause of action, maintainability, valuation and non-joinder of necessary parties etc. On merits, they did not deny the nature of the suit land as abadi deh and the existence of their residential houses there over, but denied the correctness of the site plan showing location of houses of the parties and the existence of any vacant space. Rather, they tried to show that the construction had been raised by them over their portion of the abadi land much prior to be institution of the present suit. They also denied the existence of any vacant space in between their houses and that of the appellant and the exercise of any easementary right to light and air by the appellant through any window of his house. On the premises thereof, they also denied that during the pendency of the suit and during the existence of any stay order, they had raised any construction in defiance of the court order.

4. On the basis of the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:-

1. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as prayed for? OPP

2. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for? OPP

3. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD.

4. Whether the suit filed by the plaintiff is without cause of action, as alleged? OPD.

5. Whether the plaintiff is estopped from filing the present suit by his own act, conduct, deed and acqui