IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA th ON THE 6 OF MAY, 2022 SECOND APPEAL No. 586 of 2021 Between:-

TRIVENI DEVI W/O BHOLANATH JI PRADHAN , AGED ABOUT 84 YEARS, OCCUPATION: RETD. GOVT. SERVANT HOUSE NO. 6, ROAD NO. 6, WARD NO. 38, RAMTAKRI, DIST. MANDSAUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI PADMANABH SAXENA, ADVOCATE )

AND M.P. GARH NIRMAN MANDAL THROUH ASSISTANT ENGINEER

1. ASSISTANT ENGINEER M.P. GARH NIRMAN MANDAL, SUB DIVISION, MANDSAUR (MADHYA PRADESH)

EXECUTIVE ENGINEER M.P. GARH NIRMAN MANDAL RATLAM

2.

(MADHYA PRADESH)

NAGAR PALIKA PARISHAD THR. CHIEF MUNICIPAL OFFICER

3.

MANDSAUR (MADHYA PRADESH)

DIRECTOR DIRECTORATE OF TOWN AND COUNTRY PLANNING

4.

NEEMUCH (MADHYA PRADESH)

M.P. VIDYUT MANDAL COAMPANY PASHIM KSHETRA TRH.

5. DIVISIONAL ENGINEER DIVISION OFFICE. MANDSAUR (MADHYA PRADESH)

DILIP KUMAR S/O RAJMAL JAIN KITIYANI MANDSAUR (MADHYA

6.

PRADESH)

.....RESPONDENTS (BY SHRI )

This appeal coming on for admission this day, the court passed the following:

ORDER

Heard the learned counsel for the appellant on admission.

2. Appellant/plaintiff has filed this second appeal under section 100 of the Code of Civil Procedure, 1908 ( in short “the CP”C) against the impugned judgment and decree dated 21/01/2021 passed by the Principal District Judge, Mandsaur in RCA No 300011/2106, whereby affirming the judgment and decree dated 20/01/2016 passed by the 2^nd Civil Judge, Class-II, Mandsaur in Civil Suit no 219-A/2015 filed by the appellant/plaintiff for declaration of Easementary Right and permanent injunction, which has been dismissed.

3. Facts of the case in brief are that appellant/plaintiff is the owner of the house situated at ward no 38, Ramtekdi, Mandsaur, which was purchased by appellant Trivenidevi, through registered sale-deed dated 07/11/1973 from the Karmchari Gruhnirman Sahkari Samiti, Mandsaur. The layout plan of the colony was sanctioned by respondent no 1, 2 and 3 by order dated 08/03/1976 and also sanctioned the map for construction on the aforesaid land. The appellant while constructing the house kept one door, window and ventilation in western side, wherein there was an open land. Since 1976 the appellant and her entire family members are enjoying light and air from the ventilations and windows and using door for entry and exit of her house. Earlier, the respondent never objected to the appellant's right, but on 20/03/2009, the respondent no 1 sent notice for removing the window and ventilation. The notice was duly replied by the appellant and now, the respondents are trying to interfere with the appellant's right to get air, light and path. Thus, a suit for declaration, easement right and permanent injunction had been filed by the appellant/plaintiff. Respondent no 1 to 3, 5 and 6 preferred their written statement and opposed the plaint averments. In the written statements, mainly the objection in respect of the established easement right was denied and prayed for dismissal of the suit.

4. On the aforesaid pleadings, the trial Court framed the issues and permitted the parties to lead their evidence. The Trial Court dismissed the suit by the judgment and decree dated 20/01/2016 by holding that there was an interruption in the year 1991 as the respondents sent a notice and threatened the appellant to close the door, window and ventilation. Thus the usage was not continued. Being aggrieved by the said judgment and decree, the appellant preferred an appeal before the first Appellate Court and the first Appellate Court, after re-appreciating the entire evidence placed on record, affirmed the findings of fact so recorded by the Trial Court and dismissed the appeal.

Hence, the appellant preferred present second appeal before this Court.

5. Learned counsel for the appellant contended that both the Courts below have committed grave error of law and facts in holding that the appellant's easement right was not perfected as it was discontinued in the year 1991. The judgments and decrees passed b