V.P. Tyagi, J.
1. This is defendants second appeal against the judgment and the decree dated 23rd January, 1967 of the learned Senior Civil Judge No. 1, Jodhpur and it arises out of the following circumstances:
2. The plaintiff had a house in Sonaronki Ghati, Jodhpur. To the north of this house is situate a Chabutari on which an idol of Shri Hanumanji was installed by the Sunars. Residents of Mohalla filed a suit in the representative capacity for a declaration that the Chabutari belonged to the residents of the Mohalla. In the northern wall of plaintiff's house there is a 'Jharokha' having apertures 1' x 1' admitting light and air in a 'Maliya' (room) on the first floor of the building. In the year 1968 the defendants in their representative capacity attempted to close the 'Jharokha' by raising a wall on the Chabutari. This conduct of the defendants was resisted by the plaintiff and he was compelled to bring a suit against the defendants with a prayer that a permanent injunction be issued against them restraining them to close the 'Jharokha' by constructing a wall on the Chabutari through which the plaintiff had been enjoying easementary right of admitting light and air in the 'Maliya' for the last 30 years.
3. The trial court dismissed the suit of the plaintiff on 18th January, 1960 holding that the plaintiff could not establish that he was enjoying light and air through the apertures in the 'Jharokha' for the last 20 years ending within two years from the filing of the suit. It was also remarked that the plaintiff did not plead any substantial damage by the closure of the apertures in question. The decree passed by the trial Court was taken in appeal before the Senior Civil Judge No. 2, Jodhpur who after setting aside the decree remanded the case to the trial Court with a direction that the plaintiff may be allowed to amend his plaint by pleading substantial loss which shall be caused to the plaintiff if light and air admitted through the apertures of the 'Jharokha' are permanently closed.
4. The trial court framed a fresh issue after the amendment of the plaint and the reply made thereto by the defendants and permitted both the parties to lead their additional evidence in support of their respective claims. The trial court decreed the suit on 30th November, 1963 against which an appeal was preferred to the Court of the Senior Civil Judge No. 1, Jodhpur. This appeal was dismissed by the learned Senior Civil Judge No. 1 Jodhpur on 23rd January, 1967.
5. Both the Courts below recorded a concurrent finding that the plaintiff has been enjoying for more than 20 years light and air through the 'Jharokha' in the northern wall of the plaintiffs house and thus his easementary right to admit light and air through the 'Jharokha' was his right. In thisview of this concurrent finding of fact the learned counsel appearing on behalf of the appellant however did not like to challenge the questions of facts determined by the two courts below but assailed the decree of the subordinate courts mainly on the ground, (i) that the plaintiff cannot claim that he was enjoying the easementary rights in respect of the light and air peaceably and without interruption for a period of 20 years, (ii) that in view of the fact that till 1948 there was no room (Maliya) on the first floor of the plaintiff's house and the 'Jharokha' used to open in a 'Saal' (Varandah) and, therefore, the plaintiff who had changed the mode of enjoyment of the easement cannot now claim as of right that with the closure of the apertures the amount of light and air shall be diminished to such an extent that the plaintiff cannot use this apartment in which the light and air used to come through the apertures of the 'Jharokha'.
6. The argument of Mr. Mehta with regard to the first point is that in the year 1951 the residents of the Mohalla had raised objection with regard to the admission of light and air through the 'Jharokha'. From the northern wall of the plaintiff's house and since the plaintiff filed the present suit in the year 1958 it cannot be said that the plaintiff was enjoying peaceably the easementary right for a period of 20 years without interruption and as such the rights cannot be claimed under Section 15 of the Indian Easements Act 1882.
7. Learned counsel appearing on behalf of the respondent argued that in the absence of any material on the record relating to the suit filed by the defendants in the year 1951, it is not open for the defendant-appellants to say that the plaintiff was not enjoying the easementary rights of getting air and light through the apertures of the 'Jharokha' peaceably and without interruption for the last 20 years. He contended that the previous suit of 1951 had nothing to do with the question of easement enjoyed by the plaintiff as it related to the question of the ownership of the Chabutari on which idol of Hanumanji was installed. He also drew my attention to Explanation II to Section 15 of the Act and urged that by raising any question regarding the ownership of the Chabutari it is difficult for the defendants to say that the easement enjoyed by the plaintiff was interrupted or the plaintiff had acquiesced to such interruption even if made by the defendants.
8. The plaint, written statement and the judgment in the previous suit have not been brought on the record and, therefore, it is difficult for this Court to know the natureof the dispute between the parties. It is however admitted by the parties that the previous suit was filed by the defendants in the year 1951 about the ownership of the Chabutari. In the absence of any material on the record, it is difficult for the Court to say whether the defendants had raised any dispute regarding the enjoyment of the easementary rights of getting air and light through the apertures of the 'Jharokha' in the northern wall of the plaintiff's house.
9. Explanation II of Section 15 reads as follows:
'Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorising the same to be made.'
10. Even if this argument of the learned counsel for the appellants is admitted that a wall was constructed to physically obstruct the admission of the light and air through the 'Jharokha', it is difficult for this Court to say that the plaintiff had submitted or acquiesced to such an obstruction for a period of one year after he came to know of that obstruction, On the contrary from whatever little material is found on the record it can be said that the plaintiff objected to putting any obstruction in the enjoyment of the easementary right of getting light and air in his room through the apertures of the 'Jharokha'. I cannot therefore, accept the contention of the learned counsel for the appellant that the plaintiff did not enjoy the right of easement for getting light and air through the 'Jharokha' peaceably and without interruption for 20 years specially when both the courts have recorded the finding that the 'Jharokha' is very old and the plaintiff was having light and air through this 'Jharokha' for more than 20 years in the room on the first floor of the house of the plaintiff which is now known as 'Maliya'. I, therefore, do not find any merit in this contention.
11. Coming to the next question that in the year 1948 the plaintiff converted a 'Saal' (Varadah) into a room and, therefore, he cannot now make a ground of diminution of the light and air as he was getting enough light and air before this apartment was converted into 'Maliya' from 'Saal' and, therefore, his easementary right enjoyed by the plaintiff got extinct due to the permanent change brought about by the plaintiff in the dominant heritage. It is true that from the evidence of P. W. 7 Radha Kishan it is establish-ed that till 1948 this portion of the house in which the light and air was admitted through the 'Jharokha' was a 'Saal' and it was only thereafter that the 'Saal' was converted by the plaintiff into a room (Maliya). P. W. 3 Ramlal has no doubt stated that he had seen for the last 35 years this portion of the house in the present form but this statement in the light of the testimony of Radha Kishan P. W. 7 cannot be believed.
12. The question that now arises is whether conversion of a 'Saal' into a 'Maliya' in the year 1948 would tantamount to the extinction of easementary right enjoyed by the plaintiff. In this connection my attention has been drawn to the provision of Section 43 of the Indian Easements Act which deals with the question of extinction of easementary right by permanent change in the dominant heritage. Section 23 is also a relevant provision which gives the right to the owner of the dominant heritage to alter the mode of enjoyment. According to Section 23 a dominant owner may from time to time alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage. It is not in dispute that by converting the 'Saal' into a 'Maliya' the plaintiff had imposed any additional burden on the servient heritage. Section 43 of the Act clearly lays down that where by any permanent change in the dominant heritage the burden of the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment the easement is extinguished. Reading these two provisions of the law together it can easily be inferred that the enjoyment of the easement can be extinguished only when the position of the place where the easement is enjoyed, is permanently altered in a manner so as to impose an extra burden on the servient heritage. If by closing 'Saal' and converting it into a 'Maliya' no extra burden is imposed on the servient heritage in the enjoyment of the easementary right which became ripe by prescription, the owner of the servient heritage cannot claim that the easementary right has extinguished. In this view of the matter it is difficult for me to accept the contention of learned counsel for the appellant that the easement got extinguished because the 'Saal' was converted into a 'Maliya'.
13. For the reasons mentioned above the appeal fails and it is hereby dismissed with costs.
14. Learned counsel for the appellant prays for leave to appeal to the Division Bench under Section 18 of the Rajasthan High Court Ordinance. I do not think it to be a fit case to grant leave. Prayer is therefore rejected.