Mr. L.N. Mittal, J. (Oral):- Plaintiff Kartar Kaur who was successful in the trial court but has been non-suited by the lower appellate court has come up by way of instant second appeal.

2. It is undisputed that houses of both parties adjoin each other. Case of the plaintiff-appellant is that there are three ventilators marked V-1, V-2 and V-3 and three Parnalas marked P-1, P-2 and P-3 in the site plan in eastern wall of the plaintiff’s house towards house of the defendant. Plaintiff claimed to have purchased her house in public auction held on 28.4.1964 and claimed construction of the house to be more than 65/70 years old. The plaintiff claimed right of easement by prescription regarding the aforesaid openings and therefore, claimed permanent injunction restraining the defendants from blocking or closing the same. During pendency of the suit ventilator marked V-3 was closed by the defendant for which relief of mandatory injunction was claimed.

3. Defendant in her written statement broadly denied the plaint allegations. It was denied that house of the plaintiff is 65/70 years old. It was pleaded that the openings in the wall in question were made in the year 1990. The said wall was pleaded to be joint wall of the parties. Plaint allegations were broadly denied. Some other pleas were also raised.

4. Learned Additional Civil Judge (Senior Division), Phillaur vide judgment and decree dated 22.8.2006 decreed the plaintiff’s suit. However, first appeal preferred by the defendant has been allowed by learned Additional District Judge, Jalandhar vide judgment and decree dated 6.12.2006 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

5. I have heard learned counsel for the parties and perused the case file.

6. Learned counsel for the appellant vehemently contended that plaintiff has right of easement regarding openings in the wall of her house as she purchased her house in the year 1964 and the construction with openings in question already existed. Suit was filed on 3.12.1998. Accordingly, right of easement by prescription regarding the openings in question has been claimed.

7. On the other hand, learned counsel for the respondent/defendant contended that the plea of the defendant in the written statement that openings in the wall in question of plaintiff’s house were made in the year 1990 was not controverted by filing replication and therefore, the said plea stands admitted by the plaintiff and therefore, the plaintiff has no right of easement by prescription and her suit has been rightly dismissed by lower appellate court.

8. I have careful considered the rival contentions. Learned lower appellate court has completely misdirected its approach and has proceeded on wrong assumption that defendant’s plea that openings in the wall in question were made in the year 1990 was not controverted by the plaintiff and is, therefore, deemed to have been admitted and consequently, the plaintiff has no right of easement by prescription qua the openings in question. In this regard, suffice to observe that the plaintiff in the plaint itself specifically pleaded that the entire construction of plaintiff’s house was 65/70 years old and the openings in question existed since inception. In view of said plea in the plaint itself, there was no necessity for the plaintiff to file replication to controvert the defendant’s stand that openings in the wall in question were made in the year 1990. The said version of the defendant already stood controverted in the plaint itself. Consequently, it cannot be said that aforesaid plea of the defendant stood impliedly admitted by the plaintiff by not filing replication. The approach of the lower appellate court based on the aforesaid assumption that the plaintiff impliedly admitted aforesaid stand of the defendant is completely perverse and illegal.

9. On the other hand, the defendant purchased her house vide sale deed dated