The main legal point established in the judgment is the entitlement to temporary injunction based on the existence of easementary structures for a long period, the irreparable loss caused by deprivation of light and air, and the balance of convenience in favor of the petitioner.

( 1 ) PETITIONER aggrieved by the order Annexure P/7 dated 25-7-2005 in civil Suit No. 318-A/2005 by IVth Civil Judge class I, Jabalpur and order Annexure P/8 dated 16-8-2005 by 9th Additional District Judge to the Court of District Judge, Jabalpur in Misc. Civil Appeal No. 63/2005, has filed this petition. Both the Courts by the aforesaid orders have refused to grant temporary injunction in favour of the petitioner.

( 2 ) FACTS as stated by the plaintiff before the trial Court are that the plaintiff is owner of the house property bearing House No. 739, 739/1 situated at Karamchand Chowk, marhatal, Jabalpur. This house was succeeded by her by a Will dated 5-12-1987 executed by her father-in-law late Rameshwar Prasad. Before getting the aforesaid property a hotel in the name of 'standard Hotel' was running in the property. In the eastern side of the house, there are windows, skylighters and ventilators affixed out of which light and air is being enjoyed. Defendant No. 1 purchased an eastern side house and started raising construction. Because of the construction, windows, skylighters and ventilators shall be closed and the plaintiff would be deprived with the easementary right of light and air which is irreparable loss. Defendant No. 1 is not raising construction as per permission granted by the municipal Corporation. On the aforesaid ground, the suit was filed and an application for issuance of temporary injunction during the pendency of the suit was also filed.

( 3 ) THE defendant/respondent contested the case on the ground that after obtaining due sanction and permission from Municipal corporation, defendant No. 1 is raising the construction. Plaintiff just to obstruct the construction has filed the suit. In the windows, some coolers, air-conditioners are affixed and some windows are open. The plaintiff is having light and air from the other side. The ground floor was also constructed just adjoining to the plaintiff's building but no objection was raised by the plaintiff at the time of the construction of the ground floor. The house is situated in the commercial area in which there is no provision for leaving any space between the two buildings. As per trend all the constructions are being raised adjoining to the building. On the aforesaid ground, suit and the applications both were contested by the respondent.

( 4 ) THE trial Court found that :- (i) The plaintiff has not pleaded that since last 20 years she is using light and air from the window peacefully and uninterruptedly, though it is pleaded that in the house standard hotel is being run and after Will dated 5-12-1987 she is exclusive owner of the property. (ii) At the time of the construction of the ground floor, plaintiff has not raised any objection in respect of such easement while at the ground floor, both buildings are adjoining. (iii) The suit building is situated in the dense populated area and in commercial area. At that place all the constructions are being made just adjoining to the building. (iv) That, defendant No. 1 has purchased the property on which he has a right to construct. (v) That the defendant No. 1 has obtained due permission from the municipal Corporation and if the construction is restrained then it will deprive the defendant No. 1 from the utility of the property. (vi) That the plaintiff is having alternative arrangement of light and air by using fans and coolers from the windows situated on the other side of building except on the eastern side and there is no obstruction for the light and air. On the aforesaid grounds, the trial Court rejected the application under Order 39, Rules 1 and 2, Civil Procedure Code.

( 5 ) AGAINST the order of the trial Court dated 25-7-2005, petitioner preferred an appeal before the 9th Additional District Judge to the Court of District Judge, Jabalpur. The appellate Court decided the appeal vide order dated 16-8-2005 on following findings :- (a) That, the plaintiff has not pleaded right of easem