Allahabad High Court
Suraj Prasad Keshari vs Pyare Mohan on 29 July, 2016
Bench: Arun Tandon, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- FIRST APPEAL No. - 425 of 2000 Appellant :- Suraj Prasad Keshari Respondent :- Pyare Mohan Counsel for Appellant :- A.S. Rai,Alok Kumar Gupta,Vimlesh Kumar Rai Counsel for Respondent :- Sushila Singh,A.P. Srivastava,Subhra Singh Hon'ble Arun Tandon,J.
Hon'ble Harsh Kumar,J.
(Delivered by Hon'ble Harsh Kumar, J.) This appeal under Section 96 of C.P.C. has been filed against the judgment and decree dated 24.2.2000 passed by Additional Civil Judge (S.D.), Bhadohi at Gyanpur (District Sant Ravidas Nagar) in Civil Suit No.131 of 1994, decreeing the suit with costs and passing a decree of declaration to the effect that plaintiff has an easmentary right over the disputed Gali in suit and for prohibitory permanent injunction for restraining the defendant from damaging or demolishing the Nali shown by letters ख, च, छ, ग in plaint map or obstructing the flow of water through the Nali as well as from closing the ventilators and windows and drain pipes or obstructing the use of air and light to the plaintiff's house through above windows and ventilators.
The brief facts relating to the appeal are that plaintiff Pyare Mohan filed Civil Suit No.131 of 1994 on 17.10.1994 with the allegation that the house shown by letters क, ख, ग, घ in plaint map originaly belonged to Beni Ram and was inherited by Jwala Prasad, who executed a registered will on 13.11.1980 in favour of plaintiff and his brother; that the above house is triple storied house and several ventilators and windows on each story opens towards East in 8 feet wide lane (Gali); that in the western side of the Gali there is 2 feet 3 inch wide Pakki Nali in which the water of the house of plaintiff flows through Nabdan (drain) of his house as well as through pipes from roofs and floors of triple storied house; that the plaintiff and his predecessors have always been continuously peacefully and without any interruption, flowing water through the Nali & pipes and have been taking light and air through the windows and ventilators in eastern wall of their house, for more than 20 years, as of right, and have acquired prescriptive right of easment to flow the water through Nali & pipes and take the light and air through windows and ventilators; that on 14.10.1994, the defendant threatened of demolition of the Nali and raising of a wall on western side of Gali after dismelting the pipes and of closing the ventilators and windows of the house of plaintiff, so as to obstruct and interfere in exercise of his easmentary rights to flow the water and take light and air.
The defendant filed written statement denying the allegations of plaint and contended that no water of the house of plaintiff did ever flow from the Nali in question and that he has no right to flow the water in the Nali in dispute or to take light and air through the windows and ventilators towards Gali; that the Gali in question is in exclusive ownership and possession of the defendant and neither any Parnala/pipe nor any Nabdan (drain) nor any window or ventilator of the house of plaintiff opens or ever existed towards the Gali in question nor the plaintiff has any right to flow the water in, and take light and air from, the Gali in question; that across the Gali in question there is house of Satendra Kumar, which has been purchased by him from Smt. Fatima Bibi, Asgar Bibi etc. and in the sale deed of the house of Satendra Kumar, western boundary has been mentioned as 'the Gali of defendant'; that the dirty water of the house of plaintiff flows towards North in municipal drain; that the suit is legally not maintainable and is liable to be dismissed with costs.
Upon parties pleadings, learned trial court framed the following nine issues:-
(i) whether the plaintiff has easmentary right to flow drain water of his house in the Pakki Nali shown by letters क, ख, च, छ in plaint map as mentioned in plaint?
(ii) whether plaintiff has an easmentary right of way over Gali shown by letters ख, य, र, ग in plaint map as mentioned in plaint?
(iii) whether the plaintiff has an easmentary right to take light and air from the Gali in East of his house through ventilators and windows and to flow water of his house through pipes and drain (Nabdan)?
(iv) whether the suit is barred by principles of estoppel and acquiescence?
(v) whether the suit is barred by provisions of Section 331 of U.P.Z.A. & L.R. Act?
(vi) whether the flow of water of plaintiff's house has always been towards North and not towards East as alleged in written statement?
(vii) whether the suit is barred by provisions of Section 34 of Specific Relief Act?
(viii) to what relief, if any, is the plaintiff entitled?
(ix) whether the suit is barred by time?
After completion of evidence of both parties, learned trial court decided issue nos.1, 2 & 3 affirmatively in favour of plaintiff and issue no.4, 5, 6, 7 & 9 negatively against the defendant and consequently decreed the plaintiff's suit with costs for the reliefs prayed for.
Feeling aggrieved, the defendant has preferred this first appeal.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the defendant-appellant contended that the impugned judgment and decree are bad on facts and law; that the plaintiff-respondent has no Nabdan (drain) of his house towards East in the Gali or in the Nali on western side of the Gali in question; that it is wrong to say that there are several windows or ventilators in the eastern wall of the triple storied house of the plaintiff or there are various pipes towards Gali from roofs and floors of second and third floor of the house of plaintiff; that the plaintiff did not acquire any prescriptive right of easment of taking light and air from Gali in question through the alleged windows and ventilators in the eastern wall of his house, or to flow the daily use as well as the rainy water of the house through the Nabdan (drain) as well as pipes in the Nali over the Gali in question; that the plaintiff has no easmentary right of way and has no right of egress and ingress, over the Gali in question; that it is absolutely wrong to say that the Gali in question is a public lane; that learned lower court has acted wrongly and illegally in holding that the windows and ventilators of plaintiff's house open in the eastern wall towards the Gali in question or any pipes or Nabdan exist in the eastern wall through which water flows in the Nali in the Gali in question or the plaintiff has acquired any easmentary right to take light and air from the Gali in question through above windows and ventilators or to flow the daily use and rainy water through the above pipes and Nabdan in the Nali in Gali in question; that it is proved from the evidence on record that the Gali in question exclusively belongs to the defendant-appellant and none else has any right or title over the same; that it is absolutely wrong to say that due to exercise of alleged rights of taking light and air through windows and ventilators from Gali in question or flowing water through Nabdan and pipes in the Nali in Gali in question, the plaintiff has acquired any prescriptive right of easement over the Gali in question or by such use, the Gali in question has come within the definition of public lane; that in East of the Gali in question there was a Khandhar of Basir which has been sold by his successors to Satendra Kumar and others and in the western boundary of the property of Basir so sold is mentioned as "Rasta 8 feet wide exclusively of Suraj Prasad Kesari thereafter house of Pyare Mohan"; that from the recitals of above sale deed also it is proved that the Gali in question exclusively belongs to defendant-appellant; that learned lower court acted wrongly in relying on the report of Advocate Commissioner and the findings of court below that the Gali in question is public lane and plaintiff has an easmentary right of ingress and egress over the same are absolutely wrong, illegal and without jurisdiction; that the court below committed patent illegality in misreading the evidence on record as well as in discarding the testimony of D.W.-1 and D.W.-2; that the correct spot position has been shown in the map of written statement; that the impugned judgment and decree are based on surmises and conjectures; that the impugned judgment and decree are liable to be set-aside and plaintiff's suit for declaration and injunction is liable to be dismissed with costs.
Per contra, the impugned judgment and decree were supported by the plaintiff-respondent contending that the defendant has failed to specifically deny the existence of windows, ventilators, pipes as well as Nabdan in eastern wall of plaintiff's house over the Gali and Nali in question and has also failed to deny the uninterrupted exercise of right to take light and air through the windows and ventilators from the Gali in question in East of his house and to flow daily use and rainy water of his triple storied house through Nabdan and pipes in the Nali in the Gali in question, as well as of acquiring such prescriptive right of easment of flowing the water and taking light and air by the plaintiff; that the Advocate Commissioner appointed by Court, after visiting spot, has submitted detailed report and map showing the existence of Nabdan (drain), pipes falling in the 2 feet 3 inches wide Pakki Nali on western side of 8 feet wide Gali adjoining the eastern wall of plaintiff's house as well as windows and ventilators which exist since times immemorial, in eastern wall of plaintiff's house towards the Gali in question; that the flimsy objections were raised by defendant, against the report of Advocate Commissioner which were not supported by any evidence on record; that the report of Advocate Commissioner was not set-aside by the court on flimsy objections of defendant; that the defendant could not dare to produce any evidence to show that the flow of water of plaintiff's house is towards North and no ventilators, windows Nabdan or pipes exist in eastern wall of plaintiff's house towards the Gali in question; that the defendant-appellant could neither dare to file any private report of the spot nor could dare to apply for appointment of Advocate Commissioner or Court Amin for bringing the alleged correct spot position on record, if according to him the spot position shown by Commissioner Sri Phool Chand Pandey, Advocate in his report and map 23-C was not correct; that the plaintiff does not claim any opening or any door in eastern wall of his house, over the Gali in question and has not claimed any right of egress or ingress from the alleged eastern door, rather has specifically mentioned that exit (main door) of the plaintiff's house is towards North over municipal road; that the defendant-appellant has failed to make any defence of plaintiff's rights in his written statement and has also failed to produce any evidence to contradict the plaintiff's case and establish defence case; that the appeal has filed with absolutely wrong and baseless allegations and malafide intention to harm and harass the plaintiff-respondent and the same is liable to be dismissed with special costs.
Before considering the arguments, for ready reference the provisions of Sections 4 and 15 of the Indian Easement Act are being reproduced as under:-
"Section 4 "Easement" defined. -An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners. -The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation. -In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon."
Section 15. Acquisition by prescription.- Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Upon hearing learned counsel for the parties and perusal of record, we find that the plaintiff has come with a specific case that the house in question is more than 100 years old which belonged to Beni Ram, the grand father of plaintiff and the ventilators, windows as well as pipes and Nabdan in the eastern wall of the triple storied house exist since the times of its construction by the predecessors of plaintiff. The plaintiff claims that the house in question came in the share of his cousin brother Jwala Prasad, who bequeathed it half and half in favour of plaintiff and his brother Radhey Shyam through registered will deed dated 13.11.1980 by which the eastern half share was bequeathed to plaintiff. The plaintiff's house as well as the Gali in question and surroundings the Ahata of Basir and defendant and western half share plaintiff's brother Radhey Shyam with details of existing windows, ventilators, pipes and Nabdan in eastern wall towards Gali in question have been clearly shown by plaintiff in the sketch map given at the foot of the plaint. In above map the plaintiff has also mentioned the various dimensions i.e. length and width of plaintiff's house, the Gali in question as well as 2 feet 3 inches wide Pakki Nali on western side of the Gali in question, width and length of which is 8 feet East-West and 67 feet North-South. In paras 10 & 11 of the plaint, it has been specifically pleaded that the daily use and rainy water of the triple storied house use to flow through the various pipes and Nabdan in the Pakki Nali in the Gali in question since times immemorial from last 100 years, from the times of its construction and there are as many as 5 ventilators in the rooms on ground floor, 5 windows in the rooms on first floor and 5 windows and 10 ventilators in the rooms and Varandah over the second floor, in the eastern wall of the house since then through which light and air use to come. It has been specifically pleaded that the plaintiff has been taking light and air through above windows and ventilators and flowing water through above pipes and Nabdan continuously, peaceably, without any interruption and as of right since last 100 years (more than 20 years) and has acquired prescriptive right of easment to take light and air through above windows and ventilators and to flow water through Nabdan and pipes mentioned above. It has also been specifically pleaded that if the ventilators and windows are closed and light and air through them is obstructed or interrrupted and in case the flow of water through above pipes and Nabdan in the Pakki Nali in question is obstructed, the plaintiff's triple storied house in question will not remain habitable rather will get damaged and the exercise of above rights of easment is necessary for better enjoyment of house in question.
It is pertinent to note that the ownership of triple storied house of plaintiff and its being ancestral as well as 100 years old has not been disputed by the defendant. The correctness of plaint map and existence of various windows, ventilators, pipes and Nabdan in its eastern wall have also not been disputed in the detailed written statement in over six pages filed by the defendant. Moreover there is no specific denial to above facts as well as to the existence of windows etc. except only a evasive simple plea that no ventilators, windows, pipe or Nabdan exist in the eastern wall of plaintiff's house. The defendant has also pleaded that the rainy and daily use water of plaintiff's house flows towards North and not towards East, but in the detailed written statement, even the correctness of plaint map has not been disputed. By way of lengthy amendment as many as 8 paras and a sketch map have been added to the written statement subsequently, in another two pages and even by way of amendment except denying the correctness of plaint map, no specific denial of plaint allegations as to existence of windows etc. has been made. By amendment a plea has also been added to the effect that, the plaintiff wants to usurp the Gali in question and in the sale deed of the house of Basir in favour of Satendra Kumar, in western boundary disputed Gali has been mentioned as exclusive Gali of defendant.
It is noteworthy that the plaintiff neither claimed any rights of ownership, joint ownership nor rights of egress or ingress over the Gali in question, nor has claimed it to be a common or public Gali.
It is settled principle of law and admission by Rule of pleadings that any plea taken in plaint is not specifically denied by the defendant in his written statement, it will be deemed that the defendant has admitted that plea of plaintiff and plaintiff will not be required to prove it, because admitted facts do not require proof.
At the time of considering "Admission by Rule of Pleadings" in the case of Bhawani Das Vs. Kayastha Pathshala, 1977 Allahabad Law Journal, this Court held that "Allegations made in plaint, if not controverted in written statement, the allegations so made in plaint need not be proved in view of provisions of section 56 of Indian Evidence Act."
It is pertinent to mention that at the time of filing of suit for declaration and permanent prohibitory injunction in respect of his easmentary rights for restraining the defendant from interfering in the peaceful exercise and enjoyment of above rights, the plaintiff also moved an application for issuance of the commission in the name of Advocate Commissioner who may visit the spot, serve the injunction order on defendant, prepare a map, note down the dimensions and prepare a map showing spot position. On plaintiff's application the trial court appointed Sri Phool Chand Pandey, Advocate as Advocate Commissioner, who has submitted his report with map 23-C showing therein the existing position of spot including windows, ventilators, pipes, and Nabdan in eastern wall of plaintiff's house, 2 feet 3 inches wide 67 feet long Pakki Nali along the western side of 8 feet wide 67 fee long Gali adjoining plaintiff's wall and verifying the correctness of plaint map as well as the pleadings regarding existence of windows, ventilators, pipes, Nabdan and Pakki Nali and slope (ढाल) of various roofs and floors of the house of plaintiff, towards East. Against the above report, though the defendant-appellant filed objections after a period of four years, but could neither dare to move an application for issuance of another commission for bringing the alleged correct position of the spot as has been claimed by him.
It is noteworthy that it is highly improbable rather impossible for a person like plaintiff or whomsoever he may be, to file a suit for declaration and injunction in respect of his 'Easmentary Rights' of taking light and air through windows and ventilators and flowing water through Nabdan and pipes in eastern wall of his house in the Nali and over the Gali in question without there being in existence any window, ventilator, pipes of Nabdan and slope towards East. No sane/prudent person may be expected to file such a suit with an ulterior motive to open above windows, ventilators, Nabdan and pipes subsequently in the garb of orders of the Court. It is not a case of defendant that a single window or ventilator was opened by the plaintiff in his eastern wall, in order to enjoy which, he would have filed suit without there being any window etc. in past and opened all these subsequently. It is not possible for a person to open as many as 10 windows and 15 ventilators in his 100 years old triple storied house, overnight just for claiming easmentary right on one fine morning. Similarly, the slope (Dhal) of different roofs and floors of triple storied 100 years old ancestral house may also not be changed overnight in order to claim right of flow of water over the defendant's lane by making new Nabdan and fixing new pipes by changing the slope from North to East. It is also noteworthy that by changing the slope from North to East and opening of windows ventilators in Eastern wall by making huge expenditures, no extra advantage is likely to be availed by plaintiff or any such person. It is also pertinent to mention that the plea taken in para 10 of the written statement of opening window in the upper story is also vague and is not supported by any evidence on record. Moreover neither it has been mentioned as to on which floor such window has been opened nor the number of window or windows, so opened has been mentioned which means that a single window is alleged to have been opened, while there are as many as 10 windows in existence. It is also not the case of the defendant that by opening a new window apart from existing windows and ventilators, the plaintiff has enhanced the burden on servient heritage.
In order to prove his case, the plaintiff has produced himself as P.W.-1, Mustaquim as P.W.-2, Mohd. Haneef as P.W.-3, Advocate Commissioner Sri Phool Chand Pandey as P.W.-4 and Jawahar as P.W.-5. The evidence on record shows that the plaintiff has reiterated the allegations made in plaint in his statement on oath and his statement has been duly corroborated by his witnesses as well as Advocate Commissioner, who had visited the spot and submitted report and map of the spot position. The P.W.-2 has stated on oath that he is seeing the windows, ventilators, pipes, Nabdan and Nali since long and in case they are closed, the supply of light and air shall be closed and flow of water will be obstructed. Similar statement has been given by P.W.-3, who has stated to be seeing the above spot position since last 40-45 years and P.W.-5 has stated that he has been cleansing/scavenging the Pakki Nali in the Gali in question since last 30-35 years and prior to him, the work of cleansing of Nali in question was being done by his father. Apart from noting down and showing the spot position and windows, ventilators, pipes, Nabdan, Nali, Gali and houses etc. P.W.-4 the Advocate Commissioner has also shown the trees of Pakad and Jamun standing in the Gali in question and has also given the dimensions of Gali and Nali in question as well of the as house of plaintiff. It is pertinent to mention that the objections filed by defendant against the report of Advocate Commissioner are vague and self-contradictory, as in para 1 of the objections, it has been stated that Advocate Commissioner visited the spot on 18.10.1994 and filed report on 14.11.1994, while in contradiction to above in para 2 it has been stated that the Advocate Commissioner did not visit the spot. P.W.-4 has proved his report and nothing material has come in his cross examination to doubt the correctness of his report and spot position or to disbelieve him. It is noteworthy that P.W.-4 in his statement on oath in cross examination has also stated that "water was flowing from the house of plaintiff in the Pakki Nali, when he visited the spot" but the defendant could not even dare to put a suggestion before above witness or any of plaintiff's witnesses or even to the plaintiff himself, in cross examination that the windows, ventilators, Nabdan or pipes as mentioned in the plaint do not exist in eastern wall of plaintiff's triple storied house and the slope (ढाल) of house of plaintiff is towards North and not towards East, or that the windows, ventilators, pipes or Nabdan etc. exist in Northern wall of plaintiff's house.
Apart from the admission by rule of pleadings, it is also settled principle of law that if statement of a witness is disputed, on any point, and no question is made in cross-examination, the statement made in examination in chief shall be deemed to be admitted to the other party.
It has been held by Division Bench of High Court of Andhra Pradesh in the case of Jailuxmidevamma Vs. Janardhan, AIR 1959 AP 272 (b) that "If on anything in examination-in-chief, is disputed, but opponent avoids asking questions in cross, evidence in chief must be accepted unless of course there are inherent improbabilities."
Similarly in the case of Sarwan Singh Vs. State of Punjab (2003) 1 SCC 240, the Apex Court held that "opponent declining to avail himself of opportunity to put his case in cross examination-Evidence tendered on that issue ought to be accepted."
In view of above case laws since there are no inherent improbabilities with regard to existence of windows etc. in the eastern wall of plaintiff's triple storied house, the correctness of plaint allegation as well as of statements on oath may not be disputed and will be deemed to have been admitted/accepted by the defendant.
On the other hand, the defendant has produced himself as D.W.-1 and Abdul Samar as D.W.-2 and in their statement on oath they have not dared to deny the existence of windows etc. in the eastern wall of plaintiff's multistoried house. He has also failed to reiterate the averments added by way of amendment in para 10 of the written statement, wherein it has been stated that the plaintiff has recently and unauthorisedly opened window in upper story of his house. The above factual plea of written statement since has neither been reiterated in his statement on oath by the defendant nor corroborated by his witness, nor is supported by any other evidence, so the same has no value and the above plea will be deemed to have been relinquished and will be treated as "Not Proved" by the defendant. The D.W.-2 has stated that his house is at a distance of 1 furlong from the plaintiff's house and he has not seen as to on which side the water of Nabdan of plaintiff's house flows. The above witness is alleged to be an interested witness and given evidence under pressure of defendant's wife Meera Gupta, who is Manager of the School in which his niece is getting education. Otherwise also he is a distant witness having no knowledge of the spot position and his evidence has no value.
From the evidence on record, we find that plaintiff has proved by reliable, cogent and consistent evidence that he has been taking light and air through the various windows and ventilators in various rooms and Varandahs in his 100 years old triple storied house and has been flowing daily use and rainy water of various roofs and floors of his triple storied house through Nabdan and various pipes fitted in the eastern wall of his house, in the 2 feet 3 inches wide pakki Nali in the Gali in question and has been getting the Nali cleaned and making necessary white wash, paint or repairs etc. of wall, windows and pipes and Nabdan from time to time by going in the Gali in question as and when required, and for such purposes he used to go and pass through the Gali in question peaceably, continuously uninterruptedly and as of right for the better enjoyment of his house, since last about 100 years from the times of his (fore-ancestors) and has acquired a prescriptive right of easement to take light and air to his triple storied house through above windows and ventilators from the Gali in question and to flow daily use and rainy water of the roofs and floors of his triple storied house through various pipes and Nabdan in the Pakki Nali in the Gali in question and to get the Nali cleansed or to get necessary white wash, paint or repairs etc. of windows, ventilators, pipes, Nabdan and Nali done and pass through the Gali for the purposes from time to time.
As far as the question of Gali in question being 'Public Lane', the learned lower court in his findings on issues no.1, 2, 3 & 6 has held that since the plaintiff is exercising easmentary rights of light, air and water as above, it shows that disputed Gali is not in exclusive ownership of defendant rather is a 'Public Lane'. The learned counsel for defendant-appellant contends that the Gali in question is proved to be under exclusive ownership of the defendant and by alleged exercise of easementary rights by the plaintiff, if any, the nature and ownership will not be changed and by alleged enjoyment of easmentary rights by plaintiff, the Gali may not become a 'Public Lane' under any imagination and so the findings to above effect are wrong and perverse and are liable to be set-aside.
We find force in the arguments so raised by the defendant-appellant. There is no iota of evidence to suggest that the above Gali is a public lane or it was constructed by the Municipal Board. It is also noteworthy that the plaintiff has neither claimed any ownership rights over the Gali in question nor claimed it to be a common or public lane nor claimed any exit of his house nor any right or easmentary right of egress or ingress over the Gali in question. The plaintiff has specifically stated in plaint as well as in his statement on oath that the exit gate of his house is towards North and not towards East and he enters the Gali in question only at the time of getting the Pakki Nali cleansed or undertaking necessary works of repairs etc. The plaintiff's witnesses have also stated that the plaintiff has no exit of his house over the Gali in question. The finding of court below over issue no.2 that plaintiff has an easmentary right of egress and ingress to his house over and through the Gali in question is absolutely wrong and incorrect. Similarly, the findings of court below that since the plaintiff is exercising easmentary rights of taking light and air from and flowing water in and over, the Gali, so it may not be in exclusive ownership of defendant rather is a Public Lane, is also wrong, incorrect and perverse. The findings of court below that plaintiff has also acquired easmentary right of way egress and ingress over the Gali in question and that Gali in question is a Public Lane are wrong, illegal and perverse and are liable to be set-aside to above extent.
In view of the discussions made above, we are of the considered opinion that it is proved from the evidence on record that the disputed Gali is not a public lane rather is in the exclusive ownership of defendant-appellant over which the plaintiff-respondent has a prescriptive right of easement (i) to take light and air from the disputed Gali, through various windows and ventilators in his 100 years old triple storied house (ii) to flow the daily use and rainy water of various roofs and floors of his triple storied house through Nabdan and various pipes in eastern wall of his house in the pakki Nali in the Gali in question and (iii) to pass through the Gali in question from time to time for the purposes of cleansing the Nali as well as undertaking necessary white wash, painting or repairs etc., if any, as and when required. However, the plaintiff-respondent has No exit door of his house over the Gali in question and has No easmentary right of way (of ingress and egress) over the Gali except for the purpose of cleansing of Nali and undertaking white wash, painting or repairing works etc. Since there is no prayer for declaration of easmentary right of way or injunction in respect thereof and no such relief has been granted in the impugned judgment and decree only the findings on issue no.2 which are wrong and illegal are liable to be set-aside. Therefore, the appeal is liable to be partly allowed and the findings given by trial court on issue no.2 regarding the easmentary right of way of the plaintiff over the Gali in question as well as with regard to Gali in question being 'Public Lane' are liable to be set-aside.
Accordingly, the appeal is partly allowed. The findings on issue no.2 regarding plaintiff's easmentary right of way over the Gali in question and its being 'Public Lane' are set-aside. However, the rest of the judgment and decree are found to be correct and there is no sufficient ground for interfering with or setting it aside any other findings or the impugned judgment and decree for which appeal has no merits and is liable to be dismissed with costs. The judgment and decree as well as the operative portion are confirmed, except the findings on issue no.2 mentioned above, with regard to right of way over the Gali and its being Public Lane. In all other respects the appeal is dismissed with costs. The plaint map shall form part of decree of this appeal.
Let the record be sent to court below, at the earliest, after preparation of decree.
Order Date :- 29th July 2016 Kpy