Long enjoyment and peaceable manner can establish easementary rights, and the importance of air and light to life is recognized under the Easements Act.

This Second Appeal arises out of the concurrent findings of courts below decreeing the Plaintiffs suit for declaration of easementry rights of light and air and permanent injunction. Unsuccessful Defendants are the Appellants. For convenience parties are referred as per their rank in the original suit.

2.The Plaintiff and the Defendants admittedly are adjacent land owners. The case of the Plaintiff is that he purchased the property by EX.A1 sale deed dated 07.05.1973 and constructed a house in it after obtaining EX.A2 planning permission and plan approval from the Corporation of Chennai. He has been living in the house for the past 27 years. The adjacent property belonged to the Defendants was only a hut with ground floor only. The Plaintiff has been receiving light and air to his house consisting of ground, first and second floors through the windows and ventilators on the eastern wall of the house of the plaintiff. The Defendants who purchased the property on the eastern side demolished the hut and constructed a new house of the Plaintiff and thereby blocking free flow of light and air to the building of the Plaintiff and thereby the easementry right of the Plaintiff is affected.

3.The Defendants resisted the suit contending that Plaintiff has no easementry right of light and air to his property. According to Defendants, in a street house there was no restriction for construction in the entire area and the Plaintiff cannot restrain the Defendants from putting up construction in the entire land. The Defendants have applied for permission from the authorities concerned and the Defendants has demolished the building existed in the property purchased by him and already constructed a new building and easementry right of the Plaintiff has not been affected.

4.On the above pleadings relevant issues were framed in the trial court. Upon consideration of oral and documentary evidence, trial court held that Plaintiff has acquired easementry right of light and air and that Plaintiff has perfected his right for free flow of air and light. Trial court further held that the act of the Defendants in putting up construction is against Rules and such construction would affect easementry right of the Plaintiff and on those findings granted declaration and permanent injunction as prayed for.

5.Being aggrieved, Defendants have preferred appeal in A.S.No.546/2004. Observing that Defendants / Appellants have not produced the approval of the CMDA, lower appellate court confirmed the findings of the trial court and dismissed the appeal preferred by the Defendants.

6.Challenging the concurrent findings Defendants have preferred this Second Appeal. Notice of Admission was ordered and Respondent / Plaintiff has entered appearance. With the consent of both the counsel, the Second Appeal itself was taken up for hearing at the stage of "Notice of Admission". During the course of arguments the following substantial questions of law were raised for consideration:

a)Whether the Plaintiff is entitled to get absolute easementry right through the windows of the Eastern wall of the schedule A property, and proved substantial damage caused to him because of infringement of his right?

b)Whether the Plaintiff has proved his Right of presciption of Easementry Right over the schedule mentioned property beyond reasonable doubt?

c)Whether the dominant owner can get Mandatory Injunction when he has not proved any substantial damage due to the construction of the survient owner?

7.Learned counsel for the Appellants, Mr.J.Nandagopal, has submitted that Respondent / Plaintiff gets light and air through other sources and Plaintiff cannot insist for old amenities of light and air. Drawing attention of court to commissioners report and plan, learned counsel for Appellants submitted that there is a gap between two buildings and Plaintiff gets sufficient light and air through the said gap and therefore the Defendants cannot be injuncted from putting up any further co