G.K. Misra, C.J.
1. Plaintiff purchased his house in 1926. To the south of this house lies the lands of the defendant which originally had a kutcha house thereon. The plaintiff raised certain construction on his land lying to the north which became complete in 1932. Plaintiffs' case is that he had a right of easement to light and air and this prescriptive right was used continuously for more than 20 years without any interruption from the defendant. In 1961 the defendant started construction of his house. The plaintiff raised an objection before the municipal authorities that the defendant should not be allowed to construct the second and third stories. On the intervention of the District Magistrate, Puri, an agreement (Ext. 1) was executed between the parties on 2-11-1962. By then the defendant had already constructed the second storey. In the agreement it was settled that the defendant would put Venetian shutters to the windows already constructed, but he would not construct a third storey on his building. On 3-11-1963 the defendant attempted to make construction of the third storey and accordingly plaintiff filed the suit for perpetual injunction to restrain the defendant from interfering with his right to light and air. The defence case is that the plaintiff had no easementary right and the agreement Ext. 1 was executed under coercion and undue influence exercised by the District Magistrate of Puri. The trial Court decreed the plaintiffs' suit in part and injuncted the defendant from constructing the third storey. The defendant filed an appeal and the plaintiff a cross-objection. Both the appeal and the cross-objection were dismissed by the lower appellate court. The defendant has filed this second appeal and no cross-objection has been filed by the plaintiff. The result, therefore, is that the trial courts' decree against the plaintiff has become final. In other words, the defendant is entitled to have construction of his second storey which had already been constructed.
2. Mr. Pal for the defendant appellant contended that the plaintiff has failed to prove the easementary right and the suit cannot be decreed without a further finding that the plaintiff has been materially affected by the obstruction caused by the defendant. He further contends that no right was conferred on the plaintiff under the agreement (Ext. 1).
3. It is to be noted that both the courts concurrently found that the agreement Ext. 1 is genuine and the defence plea that it was the outcome of fraud, undue influence and coercion has been rejected. We would accordingly proceed with the finding that the agreement is genuine and was voluntarily executed by the defendant.
4. When the case was opened, a question was put to Mr. Pal whether the plaintiff can establish the suit on the basis of Ext. 1 alone. The learned advocates were given full opportunity to come prepared on this point. Under Ext. 1 the defendant clearly took up the obligation on himself by giving an undertaking that he would not construct the third storey in his own house so as not to obstruct the light and air to the plaintiffs' house. Section 20 of the Easements Act, 1882 lays down that the rules contained in Chapter III are controlled by any contract between the dominant and servient owners relating to the servient heritage, and by the provisions of the instrument or decree, if any, by which the easement referred to was imposed. Chapter III contains Sections 20 to 31. By virtue of Section 20 if there is anything in the agreement between the dominant and servient owners then the other sections of that chapter will have no operation. As we have already said, the agreement between the parties imposed a negative obligation on the defendant who voluntarily accepted the position that a third storey would not be constructed in his own house to the detriment of the right to light and air enjoyed by the plaintiffs' house. Though at one stage Mr. Pal very vehemently contended that such an agreement requires registration, he was unable to bring to our notice any law or authority to countenance such proposition. We are satisfied that the agreement is operative with full force in this case and by virtue of the agreement the defendant can be injuncted from constructing a third storey on his own building including the portion marked A as shown in the map (Ext. 5) attached to the plaint and incorporated in the decree. The injunction prayed for in the present suit is confined to the building as indicated in themap. We express no view as to whether the defendant has any right to make construction upto the third storey on an area beyond what has been indicated in the map.
5. The aforesaid question of law was not canvassed in the courts below and on this simple ground the plaintiffs' suit is bound to be decreed. It is therefore not necessary to express a view as to whether the plaintiff had a right of easement and whether the same was materially affected by the construction of the third storey on the defendants' building.
6. In the result, the second appeal fails and is dismissed, but in the circumstances without costs.
B.K. Ray, J.
7. I agree.