C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for permanent injunction restraining the defendants from raising construction in the lane in question which has been marked as 'BC' in the plan Ex. 4, and also for mandatory injunction for demolition of a wall raised by the deceased defendant No.1 Gokul Narain sharma in the lane in question on account of which the plaintiff's windows, 'jalies' and spouts opening in the lane in question have been closed down.
2. The houses of the plaintiff Bhanwarlal, and the defendant No 1 Shri Gokul Narain Sharma, who died during the pendency of this appeal and is now represented by respondents No. 1/1 to 1/13, at one time belonged to Thakur Kirat Singh of Bagru (defendant No. 2). who too died during the pendency of the suit and is now represented by his widow Mst. Mohan Kanwar respondent No. 2 in this appeal. The deceased Gokul Narain Sharma was an Advocate and on account of the professional services rendered by him to Thakur Kirat Singh, the latter gifted his house situated at Bagruwalan-ka-Rasta, in Jaipur towards the north of the lane and contiguous to it by a registered gift deed dated 19-8-1949 which has been placed on the record and marked Ex.A.1. Subsequently Thakur Kirat Singh gifted the open land lying on the south of the lane to plaintiff Bhanwarlal on account of the services rendered by the latter as a physician (Vaidya) and executed a gift deed in his favour in respect of this land on 8-7-1950 (Ex.12) in which it was specifically mentioned that the land previously used as stable for elephants called Hathi-ka-Than' belonging to Thakur Kirat Singh, situated contiguous to the built house previously gifted to Shri Gokul Narain had been gifted to Bhanwarlal, after excluding a lane measuring 3.6' north to south and 69' east to west so that the windows, 'jalies' etc. in the house of Shri Gokul Narain may not be obstructed. The plaintiff Bhanwarlal started construction on the land gifted to him some time in the year 1951 A.D and constructed a number of windows, 'jalies' etc. over-looking the lane 'BC' in dispute. The plaintiff's case is that he had been enjoying light and air through these apertures opening in the lane and also been using the lane as a passage as well as for discharge of water through the spouts. According to the plaintiff the defendant Shri Gokul Narain had applied for permission to the Municipality for raising construction in the lane and therefore he filed the present suit in the Court of Munsiff West, Jaipur for issue of permanent injunction. He was, however, not able to obtain a temporary injunction against the said defendant and consequently the defendent raised a well in the lane contiguous to the plaintiff's house 24' high and 80, lang, and thereby closed down all the openings in the plaintiff's house over the lane. The plaintiff, therefore filed an amended plaint on 12-8-1955 by adding a relief for mandatory injunction for demolition of the wall constructed by Shri Gokul Narain after the filing of the suit. The plaintiff's allegation was that the lane in question had been left out by Thakur Kirat Singh for the benefit of both the parties, and that the plaintiff had acquired an easement in respect of the apertures and spouts opening in the lane. The suit was resisted both by Gokul Narain as well as the legal representatives of Thakur Kirat Singh who had died in the meanwhile. Though they have filed separate written statements but their defence is the same. The case put by Shri Gokul Narain and supported, by Smt. Mohan Kanwar widow of Thakur Kirat Singh is that the lane in question had been left out by Thakur Kirat Singh at the time of making gift in favour of the plaintiff for the beneficial enjoyment, of Shri Gokul Narain and not for the benefit of the plaintiff and further the lane had been sold by Thakur Kirat Singh for Rs. 11/- by a sale deed dated 11-7-1950 only after two days of the gift in favour of the plaintiff's Bhanwarlal. In short the plaintiffs right to enjoy light and air through the apertures existing in his house and opening on the land in question was denied, and it was pleaded that the plaintiff had neither acquired any easement in respect of them, nor he had any right in respect of the lane which was the exclusive property of the defendant Shri Gokul Narain.
3. After recording the evidence produced by the parties the learned Munsiff dismissed the plaintiff's suit. The first appeal filed by the plaintiff from the judgment and decree of the learned. Munsiff was also dismissed by the Senior Civil Judge, Jaipur City No. 1 Consequently the plaintiff has come in second appeal to this Court.
4. The only point for decision in this appeal is whether the plaintiff is entitled to restrain the defendants from raising any construction in the lane in question. It appears that the plaintiff had based his case on easement by implication under a grant. Both the lower courts have come to a concurrent finding that Thakur Kirat Singh had sold away the lane in question to Shri Gokul Narain by the sale deed Ex. A.2 dated 11-7-1950 and the contention raised on behalf of the plaintiff that this sale deed had been ante-dated and had not been executed on 11-7-1950 but was executed some time after the dispute between the parties had arisen was negatived. The learned Senior Civil Judge has also found that there was neither an express or an implied-grant of a right of easement in favour of the plaintiff over the lane for the enjoyment of his property by receiving light and air through the apertures opening in the lane.
5. Learned counsel for, the appellant! has urged in the first instance that the sale deed Ex. A.2 of the land in question in favour of Shri Gokul Narain is hot genuine and has been ante dated to defeat the plaintiff's right in respect of the land in question to support his contention the learned counsel has relied upon the application (Ex.8), by Shri Gokul Narain dt. 30-9-1954 to the Municipality, Jaipur for permission to construct a wall in the lane. He has also invited my attention to a letter sent by Thakur Kirat Singh to the Municipal Council Jaipur dt. 24-11-19.54 (Ex.9) wherein it, was mentioned that the lane in question had been left for the benefit of Shri Gokul Narain only and that the lane belonged to Shri Gokul Narain. It has been contended that the omission on the part of The Kirat Singh as well as Shri Gokul Narain to mention the factum of sale of the lane in question in favour of Shri Gokul Narain by The Kirat Singh in these documents conclusively show that the sale deed Ex. A 2 had not come into existence till then. Both the lower courts after discussing the evidence produced by the defendants regarding execution of the sale deed Ex. A.2 have found that the execution of the sale deed has been duly proved. It is true that in the application Ex.8 and letter Ex.9 there is no specific mention of the sale deed for the lane having been executed by Thakur Kirat Singh in favour of Shri Gokul Narain, but it has been asserted in both these documents that the lane belongs to Shri Gokul Narain. The omission on the part of Shri Gokul Narain and Thakur Kirat Singh to make mention of the sale deed Ex. A 2 in these two documents does not necessarily lead to the conclusion that the sale deed Ex. A 2 had not come into existence till then. The finding arrived at by the lower court that the sale deed Ex. A,2 had been duly executed is a pure finding of fact and is in my opinion not vitiated in any manner.
6. The next and the more important contention raised on behalf of the appellant is that the plaintiff had acquired an easement under the gift deed Ex.12 to receive air and light through his windows and 'Jalies' opening in the lane and had also acquired the right to discharge the water in the lane through the spouts and to use the lane as a passage. It is, therefore, argued that irrespective of the fact of sale of the land in question in favour of Shri Gokul Narain the right of easement acquired by him cannot be violated by the defendants. In my opinion too the fact that the lane in question has been sold by Thakur Kirat Singh to Shri Gokul Narain after the gift of the land in favour of the plaintiff would not make any difference for the simple reason that Shri Gokul Narain would not acquire any better rights than his transferor viz. Thakur Kirat Singh.
7. The important question for determination, therefore, is whether the plaintiff has acquired the right of easement claimed by him and that would, in my opinion, entirely depend upon the construction of the gift deed Ex.12. Learned counsel for both the parties have relied upon the terms of the gift deed Ex. 12 to support their respective con tentions.
8. For a correct appraisal of the contention of the learned counsel for the parties it would be necessary to refer to the relevant portion of the gift deed Ex.12. It has been mentioned therein that in front of Bagru House there is a piece of land, towards the North of which is a house which had been gifted to Shri Gokul Narain Sharma in which there are windows, 'Jalies' spouts etc, opening on this piece of land, for the beneficial enjoyment of which a lane 3.6' north to south and 69' east to west has been left out and after leaving this lane the rest of the open land has been gifted to the plaintiff Bhanwarlal. The contention of the learned counsel for the appellant is that the use of the word 'lane' itself indicates that the intention of the author of the gift deed was that none of the parties should raise any construction in this lane and keep it open for the beneficial enjoyment of the properties of both the parties situated on either side of the lane. On the other hand it is urged on behalf of the respondents that what had been gifted to the plaintiff was only an open piece of land on which there was no construction, and, therefore the lane was left only for the beneficial enjoyment of the house of Shri Gokul Narain Sharma in which admittedly there existed apertures and openings over-looking the lane in question. It is to be remembered that there was no construction standing on the land gifted to the planitiff and therefore there was no occasion to make a mention of any openings in respect of the plaintiff's property. It is, therefore, clear that the author of the gift deed wanted to exclude some land while making the gift in favour of the plaintiff so that the apertures, openings and spouts existing in the house of Shri Gokul Narain Sharma may not be obstructed or closed. Thus there is no denying the fact that the plaintiff did not become owner of this lane. But at the same time it is also clear that Shri Gokul Narain Sharma had not been given any right to raise any construction in this lane or to use it for any other purpose except for receiving light and air through his openings and to discharge water from his house through the spout openings in the lane. Admittedly at the time of the gift the land covered by the proposed lane had not been transferred to either the plaintiff or Shri Gokul Narain Sharma. The question then is what was the intention of the author of the gift deed Thakur Kirat Singh behind keeping this lane? From the size of the lane which is a long narrow strip it can easily be inferred that Thakur Kirat Singh could not have used it for any purpose whatsoever, especially when he had made it abundantly clear in the gift deed that the lane had been left for free passage of light and air to and discharge of water from the house of Shri Gokul Narain Sharma. If Thakur Kirat Singh had an intention to keep the land left out for lane for raising construction thereon by Shri Gokul Narain Sharma, he would have certainly mentioned to that effect in the deed itself, Omission on his part to make mention of any apertures or openings in the plaintiff's house is also clearly understandable inasmuch as there was no construction standing on the land gifted to the plaintiff. To my mind the intention of the grantor was to convey to the grantee under this deed as well as Shri Gokul Narain sharma to whom the house contiguous to the open land belonging to him had been gifted in the past a right of easement over the lane for reasonable and convenient enjoyment of the properties gifted by him to both the parties. This is the only intention which can be properly inferred from the situation of both the properties as well as from the language used in the gift deed Ex. A. 1 No right of passage has been granted even to Shri Gokul Narain Sharma through the lane in question, and, in my opinion, the facts of the present case are such as to lead me to the conclusion that Thakur Kirat Singh must be presumed to have conferred a right to both the donees fro m him, namely, Shri Gokul Narain Sharma and the plaintiff to discharge water from their houses through this lane and to keep the windows, 'jalies' and other apertures over-looking it for the purpose of light and air. I am, therefore, of opinion that the plaintiff has succeeded in establishing the right of receiving light and air through his apertures and windows over-looking this lane and to discharge water from his house through it, so as not to cause any harm to the reasonable and convenient enjoyment of similar rights by Shri Gokul Narain Sharma. So also Shri Gokul Narain Sharma and his heirs and assignees are not entitled to obstruct the enjoyment of similar rights by the plaintiff. Thakur Kirat Singh having created by implication grant to the enjoyment of the aforesaid rights in favour of the plaintiff could not have transferred the lane in question to Shri Gokul Narain Sharma subsequently so as to jeopardise the rights which he had already granted to the plaintiff under the gift deed Ex. 12. Admittedly the sale deed of the lane in question in favour of Shri Gokul Narain Sharma is of a later date. In this view of the matter the factum of sale of the lane in question in favour of Shri Gokul Narain Sharma cannot advance the case of the defendants any further.
9. Learned counsel for the appellant has cited a few authorities in support of his contention regarding creation of easement by implied grant. I do not think it necessary to discuss those authorities as in my opinion it depends upon the facts and circumstances of each case, and also upon the interpretation of each document whether an implied grant has been created? I may, however, mention that it is well established that an easement may arise by implication under a grant if an intention to a grant can properly be inferred either from the terms of the grant or from the circumstances. Express words to create such a grant are not always necessary.
10. The learned Senior Civil Judge, in my opinion has not correctly construed the terms of the gift deed Ex. A.1, and his conclusion that Shri Gokul Narain Sharma was entitled under the terms of the gift deed Ex. 12 coupled with the transfer of lane in his favour by the sale deed Ex. A.2 to appropriate the lane exclusively to his own use and raise any construction thereon so as to close down the windows, apertures and spouts existing in the plaintiff's house over-looking the lane, is are correct.
11. As a result of the fore-going discussion I allow this appeal, set aside the judgments and decrees passed by both the lower courts and hereby decree the plaintiff-appellant's suit in the following terms:
(1) That the plaintiff is entitled to receive light and air through the windows, 'jalies' and other apertures opening in the lane in question, and also to discharge water from his house through spouts over the lane in question so as not to cause any disturbance or violation to the respondents in exercise of their similar right to enjoy light and air through the lane in question and to discharge water from their house. It may, however, be made clear that the plaintiff will not be entitled to keep any doors in the lane in question so as to use it as a passage.
(2) That a mandatory injunction is issued against the defendants for demolition of the wall raised by them in the lane in question contiguous to the plaintiff's house. The defendants are granted two months' time to demolish the wall and in case they fail to do so, action may be taken against them in accordance with law.
(3) That a perpetual injunction is also issued against the defendants restraining them from raising any construction in future in the lane in question.
In the circumstances of the case the parties are left to bear their own costs.
12. Learned counsel for the respondents prays for grant of leave to Division Bench. In the fact and circumstances of the case, I do not consider it a fit case for grant of leave. The prayer is rejected.