A co-owner of a common wall cannot acquire an easement for light and air through the windows in the joint wall.

JUDGMENT :- This is an appeal by the plaintiff from the judgment and decree of the learned District Judge, Ramanathapuram at Madurai dismissing A. S. No. 121 of 1975 on the file of his court and confirming the judgment of the learned Subordinate Judge, Ramanathapuram at Madurai, dismissing O. S. 75 of 1973, a suit instituted by the plaintiff for declaration that the suit wall marked AB in the sketch annexed to the plaint is the exclusive wall of the plaintiff, for declaration that the plaintiff is entitled to right of easement for free flow of light and air through the windows marked W-3 to W-7 in the aforesaid sketch, for a permanent injunction restraining the defendant and his men from interfering in any way with the plaintiff' s right to light and air through the said windows and for a mandatory injunction directing the defendant to remove the terraced portion of the building immediately west of the windows W-1 and W-2 and the constructions put up by him west of the windows W-3 and W-4.

2. The house bearing door No. 97 in Periappallivasal St, Virudhunagar originally belonged to Kader Mohideen Rowther father of the plaintiff. The father of the plaintiff inherited a portion of the said property from his father and purchased the remaining portion under a registered sale deed dated 22-10-1910. The old constructions were demolished and new constructions were put up in the year 1911 or 1912. According to the plaintiff, it was his father who constructed the western wall as well as the eastern wall for the building bearing door No. 97. At the

time of the construction of the walls, the plaintiff' s father put up five windows on the ground floor marked as W-1 to W-5 in the plaint sketch and two windows in the upstairs portion marked as W-6 and W-7. The said windows are ancient windows through which the house was getting light and air from the open space on the western side. The plaintiff' s contention is that the western wall of the said door No. 97, which is the subject-matter of the suit, is his exclusive wall and that he has acquired an easementary right for his house through the windows W-1 to W-7.

3. The western house bearing door No. 96 originally belonged to one Ismail Rowther son of Hussain Rowther. According to the plaintiff, originally there was a construction only on the southern portion of the said house and the remaining portion was a vacant site and the owner of that building had absolutely no right whatsoever to the western wall of door No. 97. One Arunachala Nadar purchased the eastern half of door No. 96 from one Abdul Kader Rowther in the year 1958. He removed the terraced portion that was then in existence and which was below the level of the windows W-1 and W-2 in the suit wall and put up a new construction in 1959 at a higher level, thereby obstructing the two windows. He also put up a tiled verandah adjoining the suit wall and sloping towards south. That construction also, according to the plaintiff, obstructed a portion of window No. 4 in the suit wall. The plaintiff contends that as he was at Madurai at the time of the said constructions, he was not aware of them and as soon as he came to know about the constructions, he issued a notice on 21-10-1959, to Arunachala, Nadar calling upon him to remove the offending constructions. There was talk of compromise and Arunachala Nadar agreed to remove the offending portions in order to facilitate the free flow of the light and air to the house of the plaintiff through the windows W-1, W-2 and W-4 and removed the tiled construction adjoining the window W-4. However, he did not remove the construction which was causing obstruction to the other two windows. Subsequently, the defendant purchased door No. 96 from Arunachala Nadar under a registered sale deed dated 22-1-1973. In that document, the suit wall is described as a common wall. The contention of the plaintiff is that this recital is false and has been introduced deliberately for the purpose of putting forward