The judgment reaffirms the principle of easementary rights as per the Indian Easements Act, 1882, and emphasizes the importance of uninterrupted enjoyment of such rights by prescription.

Pramod Kumar Srivastava, J.

1. Original Suit No. 214 of 2002 (Jitendra Pal and anothers Vs. Dharam Pal and another) was decreed by judgment dated 07.08.2006 passed by Civil Judge (J.D.) Gadh Mukteshwar, Ghaziabad, against which Civil Appeal no. 100 of 2006 (Dharam Pal and another Vs. Jitendra Pal and others) was preferred. The said appeal was dismissed by the judgment dated 28.08.2015 of District Judge, Hapur. Against these judgments of the trial court and the first appellate court, this second appeal has been preferred by the defendants of the original suit.

2. Heard learned counsel for the parties.

3. In the original suit filed by the plaintiffs for prohibitory and mandatory injunction, plaintiffs have alleged that they have right of easement for user of light and air from the windows situated in western portion of their house and also have easementary right to drain out water of their house towards west of the house. They pleaded that towards west of their house, there is open land over which the defendant had constructed his house. But before construction of defendants' house, plaintiffs have acquired easementary right of user of light, air and draining out of water towards western side of their house. When defendants threatened to close windows and egress of water of house of plaintiffs, then they have filed suit for permanent prohibitory injunction. During pendency of suit when defendants closed the windows to plaintiffs' house then they had amended plaint and sought relief of demolition of construction obstructing the easementary right of plaintiffs.

4. The defendants had filed written statement refuting the averments of plaint and stated that there existed no window or drain of water from the western wall of plaintiffs' house; and the place described as open lands towards west of the house is the place where defendants' house had already been constructed from many years. The plaintiffs have no right to get any relief and their suit should be dismissed.

5. The trial court had framed issues, accepted evidences of parties and thereafter passed the judgment dated 11.08.2006 by which plaintiffs' suit was decreed and defendants (present appellants) were directed to remove the constructions obstructing the windows and drain of western portion of plaintiffs' house, and also not to raise any construction there in future. Against this judgment, of trial court, defendants had preferred civil appeal no. 100/ 2006 which was heard and dismissed on merit by District Judge, Hapur. Aggrieved by these judgments of the two lower courts, present second appeal has been preferred.

6. Learned counsel for the appellants contended that in plaint open land house and alleged windows and drains has been shown towards west of the house of plaintiffs. But plaintiff's side had admitted that there is house of defendants for about 20 years which proves that suit of plaintiffs has been instituted on incorrect facts, therefore appeal should have been dismissed, but it was erroneously decreed. He also contended that the first appellate court had also not considered these important facts and even the fact that for about 20 years plaintiffs have no easementary right over disputed property. Therefore, appeal should have been allowed. He contended that the finding of the fact given by the two lower courts is altogether incorrect which should be quashed. Therefore appeal should be admitted for being allowed.

7. Learned counsel for the respondents contended that from the evidences, it is proved that house of the plaintiffs-respondents situated there for about 50 years, and towards west of that house there was open land. Defendants had left the portion of open land towards west of plaintiffs house and raised his house leaving open the land, and plaintiffs had been enjoying easementary right of light, air and drainage towards west of their house through that open land. He contended that defendants-appellants had left substantial portion of land towards we