S.S. Byas, J.
1. This is plaintiff's civil second appeal who lost their suit in respect of easementary right of light and air in both the courts below.
2. The lower appellate court of the District Judge, Partapgarh recorded his findings as under:
1. two appartures - one in a room of first floor and the other in a room of second floor of the plaintiff's house opening in the West towards defendant's house existed for last more than 20 years through which the plaintiffs have been receiving air and light without any interruption
2. the defendants constructed a stair-case in that side of the house
3. there is a space of nearly 2' 2' in between the stair-case of the defendants and the aforesaid two appartures of the plaintiffs and
4. the plaintiffs have failed to show that by the defendant's constructing the stair case, they (plaintiffs) have suffered any substantial damage within the meaning of Section 33 of the Indian Easement Act, 1882 (hereinafter called 'the Act').
3. Mr. Shishodia, appearing for the plaintiffs contended that the finding of the first appellate court regarding substantial damage is erroneous and requires correction. It was argued by him that due to the defendant's raising the stair-case, there has been sufficient reduction in the flow of air and light through the windows in dispute. It was on the other hand submitted by Mr. Mehta appearing for the defendants that the finding on the question of substantial damages is well based and should not be disturbed. I have taken the respective submissions into consideration.
4. It may be said without any fear of contradiction that the plaintiffs could succeed only when they could prove that the disturbance of the easement of light and air has actually caused substantial damage to them, vide Section 33 of the Act and the explanations attached to it. It was thus for the plaintiffs to show what specific injury was caused to them. If they fail to prove this specific injury resulting in substantial damages, they cannot succeed on the mere presumption that by defendant's raising the stair-case, specific injury or substantial damages has resulted to them. As such a presumption of substantial damage is not permissible in view of the language of Sections 33 and 35 of the Act.
5. Though the aforesaid finding of the District Judge cannot be lightly brushed aside, as it is a question of fact, I have gone through the evidence to satisfy myself whether the said finding is wall-based or not. The plaintiffs examined one of them Madan Lal (PW 1) and one more witness PW 2 Tekchand. PW 2 Tekchand does not speak anything about the substantial damage. Plaintiff Madan Lal simply stated that the flow of air and light has stopped due to the defendant's raising the stair-case. He further stated that the plaintiffs are not getting that much air and light which they were getting previously. In my opinion, this does not amount to substantial damages.
6. There is a space of 2' 2' in width in between the plaintiff's house and the stair-case of the defendants. Therefore, the flow of air and light through the appartures cannot be said to have been totally stopped. It is a case not of the total stoppage of air and light through the appittures but of the reduction or diminution in the light and air. In such a ease, it was obligatory on the plaintiffs to prove the substantial damage, which they have utterly failed to establish.
7. No other contention was raised.
8. For the reasons stated above, there is no force in this second appeal of the plaintiffs The plaintiff's appeal is consequently dismissed but with no order as to costs.