The main legal point established in the judgment is the requirement of continuous enjoyment of easementary right of light and air for 20 years or more, as stipulated in the Indian Easements Act, 1882, and the application of this requirement in determining the Plaintiff's claim.

JUDGMENT :

A.K. Parichha, J. - Both the appeals arise out of a common judgment passed by the learned 1st Additional District Judge, Cuttack in Title Appeal Nos. 61 of 1987 and 62 of 1987 confirming the decree passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack in T.S. No. 110 of 1980.

2. The original Plaintiff, Smt. Satyabhama Debi, W/o. Raghunath Pathi Sastri filed the above noted suit with the pleading that she purchased the land bearing plot No. 1280 at Chandinchowk along with a single storied building standing thereon in the year 1958 and after purchase, added two more stories to that building and through the doors and windows on the eastern side wall of that house, enjoyed free flow of light and air for more than 20 years, thus perfecting her right of easement in that regard. She pleaded that plot No. 1281 lies to the east of her land having and area of Ac.0.031 dec. and Defendant purchased Ac.0.016 dec. out of the prior adjoining to the Plaintiff's land on 14.4.1970 and thereafter started construction on that land. Since such construction obstructed free flow of light and air to the house of the Plaintiff through the windows and doors on the eastern wall, she filed the suit for permanent injunction to restrain the Defendant from making any construction on his purchased land.

3. The Defendant contested the suit with the plea that there was no door or widow on the eastern wall of the Plaintiff's house prior to 1968, but the Plaintiff and her husband forcibly opened the doors and widows on the eastern wall of the 1st and 2nd floor in the year 1968 and constructed the balcony on the 2nd floor in the year 1978 in spite of the protest of the Defendant. Defendant specifically pleaded that there was a building on his purchased land covering the entire plot, which was demolished and in that place he is raising construction. Thus, while denying the claim of the Plaintiff's acquisition of easementary right, Defendant set up counter claim for closure of the door and windows and removal of balcony from the eastern wall of the Plaintiff. From the pleadings, learned Munsif framed as many as 13 issues and received evidence of the parties. On consideration of such evidence, learned trial Court came to the conclusion that the Defendant has got title over the land purchased by him, there was no sweeper passage adjoining the east of Plaintiff's building, the Plaintiff has alternative way of getting light and air from north and south, the Plaintiff was not in enjoyment of free flow of light and air continuously for 20 years or more and the construction of the Defendant will not affect his easementary right of light and air. Accordingly, learned trial Court rejected the Plaintiff's claim of easementary right and refused the prayer for permanent injunction restraining the Defendant from raising any construction over his land. However, the learned trial Court directed the Defendant to raise construction leaving a space of 3 ft. from the Plaintiff's building. Defendant challenged the direction for leaving a space of 3 ft. from the Plaintiff's building in T.A. No. 61 of 1987. He also challenged the denial of his counter claim regarding removal of door, window and balcony from the eastern wall of the Plaintiff's building in T.A. No. 62 of 1987. The Plaintiff also preferred cross objection in both the appeals. The appellate Court heard the appeals concurrently and dismissed the appeals and cross objection and confirmed the judgment and decree of the learned trial Court. Aggrieved by such orders, the Defendant-Appellant has preferred the present appeals. The Respondent-Plaintiff has also filed cross objection.

4. Since both the appeals and cross objection arise out-of a common judgment, those were heard together and are disposed of by this common judgment.

5. The appeals and cross-objection were admitted for consideration on the following substantial questions of law.

(i) Whether in view of the findings of the lower Court that there was