S. Acharya, J.
1. The plaintiff, being unsuccessful in both the courts below, has preferred this second appeal.
2. The plaintiff's case in short is that he has acquired easementary right by prescription by enjoying for more than 20 years the free flow of air and light to a room in the first floor of his house described in the plaint, and that the defendants by constructing a house close to his said house have obstructed the free flow of air and light to the plaintiffs said room thereby causing material injury to the comfortable use of the said house by the plaintiff. On that allegation the plaintiff has prayed for mandatory injunction against the defendants directing them to demolish their said building in the vicinity to the extent of 10 cubits in height.
3. The defendants contest the suit by stating that the plaintiff has not acquired the easementary right claimed by him; there is no obstruction to free flow of air and light to the plaintiff's building due to the , construction of the defendants* house; and that the suit is bad for nonjoinder of necessary party, i. e. the owner of the house.
4. Both the courts below have held that the plaintiff has not acquired the easementary right by prescription claimed by him; he has not suffered any material injury due to the construction of the defendants' building in the vicinity; and that the suit is bad as the owner of the house, who is a necessary party to such a suit, has not been impleaded as a party in this suit.
5. The plaintiff in his evidence in the court has admitted that the defendants' house in question has been sold to the father-in-law of defendant no. 1. The said father-in-law of defendant no. 1 has not been made a party in the suit. In para. 2 of the written statement filed by the defendants it is stated that the house in respect of which mandatory injunction is prayed for by the plaintiff is in the possession and enjoyment of one Pitabas Patra of Haduguda under a conditional sale deed. The trial court on a perusal of the pleadings of both the parties framed Issue No. 2 as follows :--
'Is the suit bad for non-joinder of parties?'
The plaintiff in this suit inter alia prays for issue of a perpetual mandatory injunction against the defendants directing them to demolish a portion of the said building. The defendants state that defendant No. 1 is a tenant in the said house and defendant No. 2 is a casual visitor to that house. They do not claim any proprietary right to that house,
In a suit for mandatory injunction for pulling down a house or any portion thereof or affecting the same in any permanent manner as prayed for in this suit, without doubt, the owner of the house is a necessary party. He has to be made a party in the suit to properly and finally adjudicate the matter and to pass an effective decree in the suit. As the admitted owner of the house in question has not been made a party to the suit, and in view of the fact that the defendants do not claim any proprietary or permanent right in the complained of house, both the courts below have rightly held that the suit is bad on the ground of nonjoinder of the necessary party.
6. Both the courts below find that the plaintiff has failed to prove that he has suffered any material injury due to the construction of the said house in the possession of the defendants. Both the courts below have found on the evidence on record that in between the two double-storeyed building, i. e. one belonging to the plaintiff and the other in the occupation of the defendants, a low tiled house of the plaintiff intervenes, and the complained of house has not been constructed very close to the plaintiff's house. The courts below, on consideration of the evidence on record, have also found that the building occupied by the defendants does not obstruct the sunlight or free flow of air to the plaintiffs' window or his building. In the Full Bench decision of this Court in Krushna Kishore Bal's case (AIR 1974 Orissa 89) it has been held :--
'Even in a case where a person has acquired a right of easement to light and air, an action for damages or injunction is not maintainable unless the injury complained of is material.'
In this case, apart from the said concurrent finding of fact that no material injury is caused to the plaintiff, due to the said house in the occupation of the defendants, it has also been found by both the courts below that the plaintiff has not acquired the easementary right lof enjoyment of free flow of light and anas claimed by him.
7. On hearing the counsel appearing for both the parties and on going through the relevant portions of the judgments of the courts below I am satisfied that the decision of the courts below dismissing the plaintiff's suit is perfectly correct and justified and I do not see any reason to interfere with the said decision.
8. The second appeal, therefore, is dismissed. In the circumstances, however, both the parties shall bear their own costs of this Court.