Mr. Hemant Gupta, J. (Oral):- The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for permanent injunction filed by the plaintiff-respondent for restraining the defendant-appellants from obstructing and closing the Nali on the ground floor; two parnalas at point P-1 & P-2 and window on the first floor, as shown red in the site plan, was decreed in appeal.

2. The plaintiff-respondent filed the present suit for permanent injunction claiming that she is owner in possession of the house having nali; parnalas at points P-1 & P-2 and window on the first floor, as shown in the site plan. The plaintiff asserted that she has been using the house with such facilities for the last 50-60 years since the time the house was built. She claims right of easement. The defendants are said to be residing in the adjoining house and have threatened to close the nali, parnalas and window forcibly.

3. The defendants in the written statement asserted that they have never obstructed or threatened to close the two parnalas at point P-1 & P-2 and window on the first floor, but disputed the existence of Nali as shown in the site plan.

4. The learned trial Court found that in view of the categorical stand of the defendants that they never intended to close the window and parnalas shown in the site plan Ex.P1, the plaintiff has no cause of action against the defendants to that extent. However, the learned trial Court returned a finding that the defendants have closed Nali before the institution of the suit and, thus, the suit for permanent injunction is not maintainable and that the plaintiff should have filed a suit for mandatory injunction. In appeal against the judgment and decree passed by the learned trial Court, the learned first Appellate Court examined the report of the Local Commissioner dated 16.11.1988 to return a finding that the defendants have closed the Nali from outside and, thus, the plaintiff had made out a case for decree for injunction.

5. The defendant-appellants have filed the present appeal aggrieved against the said order. The appellants raised the following three substantial questions of law:

“1. Whether a suit for permanent injunction is maintainable to restrain the defendants from closing a Nali, when no Nali exists at the spot?

2. Whether easement right can be pressed even though it causes nuisance to the defendants?

3. Whether easement right can be granted even though alternate passage is available for discharge of waste water?”

6. In respect of the first question of law, it may be noticed that the present suit for permanent injunction was filed on 23.07.1987, whereas the Local Commissioner visited the site on 16.11.1988. In respect of Nali, the report of the Local Commissioner is as under:

“2. At present there is no drain (Nali) of the ground floor of the plaintiff as shown in the site plan of the plaintiff. In the inner side of the house of the plaintiff on the eastern side, there is a sign of bathroom, but that has not been used since a long time. In the above said bathroom, there is a hole, which is blocked from the outside.”

7. The Local Commissioner has not been cross-examined, therefore, the report submitted by the Local Commissioner has to be read as evidence in terms of Order 26 Rule 9 of the Code of Civil Procedure. The extract of the report shows that there was a sign of bathroom and in such bathroom there is a hole, but such hole has been blocked from outside. It, thus, leads to the existence of bathroom, a drain and its blockage. The observation that bathroom has not been in use since long time has to be read in the context of the fact that the report was given on 16.11.1988 though the suit was filed in July, 1987. The defendants have denied the existence of Nali, but the report of the Local Commissioner substantiates the existence of Nali. Therefore, the argument that such Nali has been blocked before the filing of the s