ORDER: By consent the main revision petition itself is taken up.

2. The civil revision petition is filed against the order of dismissal of the prayer for the appointment of an Advocate Commissioner to visit the suit property, note down the physical features, besides the age, stage and measurement of the new construction in B Schedule property and submit a report, by the learned Principal Subordinate Judge, Kumbakonam, made on 3.4.2001 in I.A. No.78 of 2001 in O.S. No.65 of 2001 on his file.

3. The suit itself has been filed for permanent injunction restraining the defendant, his men, servants, agents, etc. from in any manner interfering with the easementary right of light and air to A Schedule School Buildings by making any offending constructions in the B Schedule site or by making any further constructions and for a mandatory injunction for removal of the offending constructions in B Schedule site, which are affecting or interfering with the easementary right of light and air to A Schedule School Buildings.

4. The plaintiffs are the revision petitioners. The first plaintiff is the Secretary and Correspondent of Sri Krishna Aided Primary School and Saraswathi English Medium School and Principal of Sri Krishna Girls High School and the second plaintiff is the Secretary and Correspondent of Sri Krishna Girls High School, all of which are run in the A Schedule site for over several decades. The defendant purchased the site described in B Schedule on 6.11.2000. From 1953 to 1989 Sri Krishna Aided Primary School was in thatched building with brick walls. On the southern wall in T.S.No.762-B and on the eastern wall formerly in T.S.No.761, now in T.S.No.761-B a number of windows are there, through which light and air are received from B Schedule suit site to the School Buildings. There was uninterrupted enjoyment of light and air from B Schedule site from 1953 till 1989. Prescriptive easementary right had thus been acquired.

In 1989 the first plaintiff constructed a double storeyed School Building in T.S.No.762-B and T.S.No.761-B and on the southern wall there were windows in T.S.No.761-B, through which light and air have been continuously and peacefully enjoyed by the School Buildings. The defendant and his predecessors in title have also acquiesced in the said peaceful enjoyment from 1953. The defendant attempted to construct a wall in B Schedule site on 28.2.2001 and thereby interfered with the light and air to the plaintiffs’ School Buildings. The second plaintiff objected to the same. The defendant preferred a complaint before Kumbakonam Town Police Station (East). He agreed to construct in B Schedule site without affecting and interfering with the free flow of light and air through the windows to the A Schedule School Buildings in suit A Schedule property. Notwithstanding his assurance, he had been hurriedly constructing the wall to some height day and night on the northern side in the B Schedule site near the southern wall in the A Schedule item 1 School Buildings in T.S.No.762-B in order to obstruct the free flow of air and light through the windows in the said School Buildings southern wall in spite of the objections of the plaintiffs. The students will have to undergo health hazard in view of the construction of the wall by the defendant. In those circumstances, the suit had been filed.

Pending suit the present application as also another application for injunction were taken out.

5. In the affidavit in support of the application for appointment of Advocate Commissioner, it is stated that the physical features of the suit property had to be noted, besides the age and stage of the new construction.

6. In the counter filed by the defendant, the various allegations are denied and it is stated that only because the second plaintiff gave trouble, the defendant had to file a police complaint and the police rightly directed the second plaintiff not to give any trouble to the defendant. The defendant never agreed before the police th

Click Here to Read the rest of this document