[2025:RJ-JP:23548] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 216/1999 1. Suraj Narayan Sharma (Deceased), S/o Unknown, R/o Jaipur Aakdo Ka Rasta, Moolchand Baj Ki Gali, Chowkari Topkhana Desh , Jaipur 1/1. Smt Kamla, Widow Of Suraj Narayan, 1/2. Smt Champa, Widow Of Radheyshyam 1/3. Rajendra Kumar, S/o Radheyshyam 1/4. Smt. Nirmala W/o Gopal, D/o Radheyshyam All R/o Jaipur Aakdo Ka Rasta, Moolchand Baj Ki Gali, Chowkari Topkhana Desh, Jaipur. ----Appellants Versus 1. Prahlad Das Toshniwal (Dead) S/o Saligram Toshniwal, R/o Jaipur Bhura Tiba, Rasta Harishchandra Marg, Chowkari Topkahan Desh Jaipur. 1/1. Ramgopal S/o Sh. Nand Kishore, R/o Chowkari Topkhana Desh, Rasta Aakdan Moolchand Baj Ki Gali, House No. 355, Jaipur. 1/1/1. Kailash Kumar Hurkat 1/1/2. Suresh Kumar Hurkat both sons of Lt. Shri Ramgopal since deceased resident of 355, Ankdon ka Rasta, Kishanpole Bazar, Jaipur. 2. Smt. Saraswati Devi W/o Late Sh. Ramswaroop, R/o Chowkari Topkhana Desh, Rasta Aakdan Moolchand Baj Ki Gali, House No. 355, Jaipur. ----Respondents For Appellant(s) : Mr. J.P. Goyal, senior advocate with Ms. Sakshi Tiwari For Respondent(s) : None. HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 08/05/2025 1. Instant second appeal is preferred by appellant defendants aggrieved from judgment dated 20.08.1997 in civil regular appeal [2025:RJ-JP:23548] (2 of 13) [CSA-216/1999] No.01/1977 passed by learned Additional District Judge No.2, Jaipur City, Jaipur whereby on an appeal preferred by respondents the Civil Suit filed by respondent plaintiff is decreed and the cross- objection of present appellant was dismissed. The appellate court has passed following decree in the first appeal: " अपीलार्थीगण की अपील मय खचण मुकदमा स्वीकार की जाकर इस आशय की निषेधाज्ञा रेत्पोडेंट के नि$रुद्ध जारी की जाती है निक $े मका म्बर-355 पू$ मुखी $ाके जयपुर आकडों का रास्ता गली मूलचन्द बज में स्थि1नित तीसरी और चौर्थीी मंनिजल की mÙkjh स्थिखडनिकयों को चरपेटा लगाकर बन्द करें और इ स्थिखडनिकयों से प्राप्त होे $ाली ह$ा रोशी में कोई बाधा करें । रेस्पोडेंट के क्रोस आब्जेक्श इसी अुसार अस्वीकार निकये जाते हैं।" 2. Learned Senior Advocate appearing on behalf of appellants submitted that plaintiff prahlad das has filed a civil suit for injunction in relation to easementary right alleged to be matured by efflux of time. He further submitted that no declaratory relief whatsoever is sought by the plaintiff while filing a civil suit. He further submitted that the plaintiff in garb of Civil Suit want to open those windows, which were illegally opened towards defendants. He also submitted that the plaintiff has not been able to prove the existence of a right of easement and also maturity of easementary right. He further submitted that drafting of plaint is defective as the plaintiff has failed to mention substantial damage, if said windows were closed by raising a wall by appellant defendants. He also submitted that the trial court after considering the evidence and facts of the case has dismissed the civil suit. He also highlighted the admission of plaintiff and submitted that the window on first and second floors were already closed but in garb of injunction order the plaintiff want to reopen said windows. He also submitted that there is no relief in mandatory form as the [2025:RJ-JP:23548] (3 of 13) [CSA-216/1999] windows were already closed as per admitted fact and now there cannot be any injunction about said windows. He further referred the findings of the appellate court and submitted that the appellate court has failed to take note of the fact that plaintiff has failed to prove substantial damage, if these windows were closed. He further submitted that the findings on issue Nos. 5 and 6 is contrary to the record and same is not in accordance with evidence. He further placed reliance in case of Prem Devi Vs. Sohan Lal 1988 (1) Rajasthan LR 632, Mst. Umrao Kanwar and Anr. Vs. Ram Pyari and Ors. 1959 AIR (Rajasthan) 235 and Mst. Dakhan Bai and Mst Anandi Bai Vs. Dhanraj 1959 AIR (Rajasthan) 144 and submitted that there is a condition precedent for issuance of injunction in case of easementary right and if same is proved then only a decree for injunction be passed. He further submitted that the plaintiff has failed to prove not only substantial damage and also availability of easementary right therefore the decree passed by appellate court is contrary to material on record. 3. Despite the sufficient service upon defendant and taking up matter on multiple occasions, no one is present on behalf of respondents plaintiff. 4. Heard learned Senior Advocate for appellants and perused the record along with judgments as referred by learned Senior Advocate for appellants. 5. The facts giving rise to instant second appeal are that plaintiff Prahlad Das (since deceased) filed a civil suit for injunction against Suraj Narain Sharma with the averment that [2025:RJ-JP:23548] (4 of 13) [CSA-216/1999] some windows/openings were situated from ground floor to top floor having measurement of 2X1.5 feet and existing since 50 years but defendant desires to close said windows by raising a wall adjacent to wall of plaintiff. After completing pleadings the trial court has framed four issues. The plaintiff has examined four witnesses whereas defendants has examined four witnesses. The trial court has decided issue No.1 against the plaintiff but decided issue NO.2 partially in favour of plaintiff and also decided issue No.3 on the basis of findings on issue No.2. Since plaintiff is not found to be owner of his own house so the suit of plaintiff was dismissed. 6. The plaintiff has filed an appeal against the impugned judgment. While considering the appeal on 19.11.1981 by learned Additional District Judge No.2, additional issues were framed and matter was sent for fresh decision on issue No.5. After remitting the matter plaintiff Prahlad has expired and due to dispute about continuation of suit by substituted plaintiff, issue No.6 is also framed. 7. Learned Civil Judge (Junior Division), Jaipur City (West), Jaipur has decided two issues on 30.03.1996 after recording fresh evidence of both the parties. As a result, these two issues Nos. 5 and 6 were decided by the trial court in favour of plaintiff. After considering the appeal and cross-objection the appellate court has passed a decree on 20.08.1997, in favour of plaintiff respondent. 8. For ready reference, we are reproducing the issues framed by the trial court on the basis of pleadings and also the issues [2025:RJ-JP:23548] (5 of 13) [CSA-216/1999] framed by the appellate court during pendency of first appeal and same are as under: 1. क्या $ादी मका मुन्दजा मद म्बर- । जायदाद का मा निलक है और उसका दा$ा दायर करे का हक हैं। 2. क्या $ादी के मका की चारों मंनिजलों में दनि?ण की और देखती हुई स्थिखडनिकयां दो × डे<+ फु ट की $ाद पत्र के मद प्रभबर---3 में बता, गये नि$$रण के मुतानिबक 50 $षD से मौजूद हैं और $ादी इसते ह$ा रोशी निरन्तर निबा रुका$ट के प्राप्त कर रहा हैं । 3. क्या $ादी प्रनित$ादी को स्थिखडनिकया बन्द हीं कराे के निलये पाबन्द कर सकता है । 4. दादरती । 5. क्या तीसरी और चौर्थीी मंनिजल में लगी स्थिखडनिकयों के बन्द होे से $ादी को धारा 33, सुखानिधकार अनिधनियम के अुlk र lk रभूत ?नित होगी? 6. क्या $सीयत निदाक 6.6.85 मृतक प्रहलाद दास $ादी े तहरीर तकमील की और उस आधार पर $ादीगण को $ाद चालू रखे का अनिधकार हैं? 9. During pendency, original plaintiff Prahlad and defendant Suraj were expired and their LRs were taken on record. 10. While considering the grounds of second appeal, a Co- ordinate Bench of this Court has admitted this appeal on following substantial question of law: (i) "WHETHER, the plaintiff has got sufficient and adequate air and light receiving through the windows and opening towards east and western side of his house, therefore, closing of the windows of northern side of his house would not cause any substantial damage or injury to him within the meaning of Section 33 of Easementary Act?." (ii) "WHETHER, the closing of the easement as claimed by the plaintiff is lessor than the opening already existed in other sides of the plaintiff's house would sufficiently meat the requirement of the plaintiff to receive light and air in the third and fourth storey of his house?. [2025:RJ-JP:23548] (6 of 13) [CSA-216/1999] 11. Admitted facts reflect that a suit for injunction is filed but no declaratory relief about easementary right claimed by the plaintiff. Issue No.1 which was decided against the plaintiff reflect that plaintiff was not the owner of his own house and he has no right to claim easement for second and third floor. It is also on record by admission that windows on ground and first floor were already closed. After discontinuation of right of easement the plaintiff is not entitled to claim easement on the basis of prescription. While deciding the appeal on 19.11.1981, the first appellate court has reversed the finding on issue No.1 and held that the plaintiff has a right to institute a suit and he is owner of house No.355. Issue No.2 was decided in favour of plaintiff whereas considering issue Nos.3, additional issue No.5 was framed and later issue No.6 was framed and both were decided in favour of plaintiff. The appellate court again while considering civil appeal No.01/1977 has only considered findings on issue Nos. 5 and 6 in its order. The record clearly indicated that the judgment dated 19.11.1981 was challenged by filing Misc. Appeal No.178/1982 but after death of Suraj Narayan (defendant), civil misc. appeal stand abated on 07.09.1990. 12. This court while considering the second appeal has framed only two substantial questions of law and both are related to each other, therefore we are deciding these issues collectively. 13. In case of Mst. Dakhan Bai and Mst Anandi Bai Vs. Dhanraj (supra) a Co-ordinate Bench of this Court has referred judgment in case of Kunnilal Vs. Kundan Bibi ILR 29 All 571 and referred para is reproduced as under: [2025:RJ-JP:23548] (7 of 13) [CSA-216/1999] “entirely ignored Section 35(a), Easements Act. Section 35 enacts when an injunction may be granted. Clause (a) refers to a mandatory injunction and Clause (b) to a perpetual injunction. The section is unfortunately worded. In Clause (a) a mandatory injunction is allowed when compensation for disturbance might be recovered under Section 33. The word "when" must be construed to mean "when and where," because it would be useless to prescribe that an injunction could be granted when damages can be claimed under Section 33, if damages under Section 33 could not be claimed. The effect of the clause is, therefore, only to allow an injunction where substantial damages is proved. This conclusion also follows from Section 54, Specific Relief Act, which only allows an injunction when pecuniary compensation would not afford adequate relief. It follows that an injunction is only an alternative within the discretion of the Court and is not an independent form of relief. Thus it was held in the above case that “an injunction to restrain the disturbance of an easement of light and air can only be granted where substantial damage is proved to have been caused” 14. Again referring judgment from Jamna Das Vs. Gulraj AIR 1952 Rajasthan 1, it was observed that: "in a suit for perpetual injunction restraining the defendant from obstructing light and air of a window of the plaintiff's house the question to be considered is whether the act of the defendant in obstructing the light and air of the plaintiff's ancient window can be considered to be a nuisance. It is for the plaintiff to show what [2025:RJ-JP:23548] (8 of 13) [CSA-216/1999] specific injury is caused to him and when he has failed to prove this, he cannot succeed on the mere presumption that by closing down of the disputed window, specific injury should be deemed to have been caused to the plaintiff .... Mere closing down of the ancient window cannot by itself be deemed to have caused substantial injury to the plaintiff." 15. A Co-ordinate Bench of this Court after considering the judgment of the Privy Council in Paul Vs. W.Rob-son AIR 1914 Privy Council 45 has partially allowed the appeal of defendant. In case of Mst. Umrao Kanwar and Anr. Vs. Ram Pyari and Ors. (supra) relying and referring judgment in case of Mst. Dakhan Bai and Mst Anandi Bai Vs. Dhanraj (supra) appeal of plaintiff was allowed to the extent of opening of windows, already closed. 16. In case of Prem Devi Vs. Sohan Lal (supra) referring judgment in cases of Jamna Das Vs. Gulraj (supra), Mst. Dakhan Bai and Mst Anandi Bai Vs. Dhanraj (supra) and Mst. Umrao Kanwar and Anr. Vs. Ram Pyari and Ors. (supra), a co-ordinate Bench has partially allowed second appeal of legal representatives of defendant but dismissed the second appeal filed by plaintiff. A co-ordinate Bench has considered substantial damage caused to plaintiff by closure of the window and drawn a finding that plaintiff has failed to prove substantial damage in case of closure of window. [2025:RJ-JP:23548] (9 of 13) [CSA-216/1999] 17. Section 33 of Indian Easement Act, 1882 is reproduced as under, which provides for institution of suit for disturbance of easement: “The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto: provided that the disturbance has actually caused substantial damage to the plaintiff. Explanation I. The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34. Explanation II. Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. Explanation III. Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.” 18. The suit of plaintiff is based on a easementary right acquired by him for more than 50 years of continuous usage of light and air from the windows having opening towards defendant. The windows situated on ground and first floor were already closed though suit is filed for windows existing on other floors but looking to the scope of this case the appellate court has granted injunction only for second and third floor (teesri and chouthi manjil). 19. PW-1 Ram Gopal was examined as power of attorney of plaintiff Prahlad and in his evidence he deposed that except these windows there is no other opening to acquire light and air but his admission suggested that house of plaintiff is having opening [2025:RJ-JP:23548] (10 of 13) [CSA-216/1999] towards three sides. After framing of issue Nos.5 and 6 Ramgopal was examined on 07.08.1995 as substituted plaintiff. The admission in cross-examination suggest that on opposite side of this windows there is open terrace and same is already opened. The admission also suggested that there is chowk on other western side. The admission suggested that there is no common passage between plaintiff and defendant houses. We have also seen the evidence of PW-3 Kanhaiya Lal, PW-2 Radhey Shyam and PW-4 Jumma, who clearly deposed that there is no common passage between plaintiff and defendant. PW-5 Gopal Krishan has admitted there there is another window on 4th manjil on western side. PW-5 clearly mentioned that in second manjil the plaintiff has made openings towards west by constructing window. We have also considered statement of DW-1 to DW-4 and subsequent statement of DW-5 Rajendra Kumar, DW-6 Yashoda Nandan and DW-7 Hari Narayan. Their evidence suggested that there are other openings on the third and fourth manjil (second and third floor). 20. A perusal of map Ex.3 suggested that on three sides of house of plaintiff (other than side of defendant) there were openings and the plaintiff can open and construct window or ventilator towards these three sides as on two sides there is pathway whereas on one side (west) there exist a government courtyard. The map Ex.3 clearly suggest that the plaintiff has lots of options to open his window either on south side or west side or east side. It is not necessary for the plaintiff to insist upon continuous opening of windows having opening towards side of house of present appellant defendants. [2025:RJ-JP:23548] (11 of 13) [CSA-216/1999] 21. The plaintiff has already created and opened windows towards other sides in respect of ground and first floor and same is evident from the evidence of plaintiff. It is also apparent on record that the house of plaintiff is having opening towards three sides which can be utilized for air and light. The plaintiff want to continue windows on second and third floor having opening towards defendants. 22. In a situation like present one it is necessary for the plaintiff to show substantial damage which means significant harm or injury resulted in disturbance of easementary right marking the value of the dominant heritage or causing material discomfort to the owner of the said heritage. It is settled proposition of law that mere inconvenience or slight diminution in value is not sufficient to enforce easementary right. The courts below were required to consider that the damage is not only substantial but should be significant and affect the enjoyment or value of the property. It means physical comfort to the dominant owner who is using property, is affected by blocking air and light. 23. Section 33 of the Act deals with the admission of substantial damage in matters relating to easement but it is necessary for dominant owner to prove that damage is substantial and it is beyond inconvenience. 24. Section 32 of the Act gives right to the plaintiff to enjoy the easement without disturbance by any other person as he is occupier of dominant heritage. Section 35 of the Act provides for injunction to restrain disturbance but it can be issued subject to provision of Sections 52 to 57 of the Specific Relief Act. [2025:RJ-JP:23548] (12 of 13) [CSA-216/1999] 25. Herein this case, it is an admitted fact that there is no passage or common area between houses of plaintiff and defendant therefore the opening towards house of defendant may cause inconvenience and disturb privacy of defendant. Time and again the courts in the country have asserted the right of privacy and held that right of privacy is a fundamental right in wake of Articles 14, 19 and 21 of the Constitution of India. This right encompasses various aspect of persona life, protection from unwanted surveillance and intrusion of one’s private space which can extend to one’s property. 26. We have to make a balance between easementary right and right to privacy particularly when law provides for enjoyment of easementary right to dominant owner but at the same time it should not disturb the privacy or cause unnecessary disturbance or surveillance upon the occupier of heritage. The court has to make a balance between these two rights in wake of legal position. 27. Herein this case, the right of easement is claimed by plaintiff and there is no declaratory relief in the plaint but only a relief of injunction is claimed. The trial court has initially dismissed the suit of plaintiff but later issue No.1 decided by the appellate court, after reversing findings of trial court and matter was remitted on one issue while keeping decision on issue No.3 pending. The appellate court has not touched the issue No.3 rather it has decided issue Nos. 5 and 6 framed by the appellate court on 19.11.1981. Aggrieved from said order, a misc. appeal is preferred but same was dismissed as abated by this court. [2025:RJ-JP:23548] (13 of 13) [CSA-216/1999] 28. The facts and findings suggest that after closure of windows by defendant by raising wall the plaintiff has created opening towards other side which indicated that plaintiff has option to obtain air and light. The map Ex.3 clearly suggest that plaintiff has opening towards three sides and it also means that from ground floor to top floor the plaintiff can open window or ventilation on eastern, western or southern side. It also indicated that plaintiff has an alternative but he has used this alternative for ground floor and first floor. 29. Considering aforesaid the courts below have committed serious error while deciding issue No.5 in favour of plaintiff. The material on record clearly suggest that no substantial damage can be caused if defendant appellant raised a wall by resulting in closure of these windows on northern side of the plaintiff. 30. In view of the discussion made hereinabove, both substantial questions are decided in favour of appellant and as a result, appeal is liable to be allowed and suit of plaintiff is liable to be dismissed. 31. Accordingly, instant second appeal is allowed and judgment dated 20.08.1997 in civil regular appeal No.01/1977, and the findings dated 02.02.1976 by learned Civil Judge (Junior Division), Jaipur City (West), Jaipur are set aside. As a result, suit preferred by plaintiff is hereby dismissed. 32. No order as to cost. (ASHOK KUMAR JAIN),J PREETI VALECHA /91