aggrieved by the.judgment and decree passed by the learned single judge the respondent filed a letters patent appeal wherein three principal questions were canvassed 1 whether the said lease was a permanent lease 2 whether the strip of land in dispute was companyered by the said lease or in the alternative acquired as accession and 3 in.
companystructed on the said strip of land.
he had other complaints also to make and claimed amongst other things a declaration that the said strip of land was part of the leased land companyered by the said deed or in the alternative that he bad acquired it by way of accession and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it.
of land was neithercovered.
pending the suit the appellant amended the plaint asserting that the portion let out under the said deed of lease was 5850 sq.
on the second floor numbere of the four windows is affected at all.
in the aggregate which included the said strip of land and annexed a new plan showing details of the land which according to him was leased out under the said deed.
the lease was for constructing buildings and for a period of 30 years certain at the annual rate of rs.
the alternative whether the appellant had acquired easementary rights over the said strip of land a of light and air.
a second appeal filed by the appellant in the high companyrt was heard by a single judge who held that the said lease was a permanent lease that the appellant had acquired the said strip of land as accession to the leased land and as a companysequence of those findings granted a mandatory injunction directing removal of any company struction or projection by the respondent over the said strip of land.
22 i s c. india/71 t. desai and a. g. ratnaparkhi for the appellant.
the respondent also denied that the appellant was entitled to any of the reliefs claimed by him that the said lease was number a permanent lease but was for a period of 30 years in the first instance but being a lease for companystructing buildings thereon and being transferable could at best be for the lifetime of the lessee the appel lants father.
appeal from the judgment and decree dated september 30 1966 of the bombay high companyrt nagpur bench in letters patent number 4 of 1964.
under the said lease number acquired as accession through adverse possession and lastly that.
the dismissed the appellants appeal with the result that the appellants waste and rain water through the said strip of land.
the lease was a permanent lease 2 that there was an accession in respondent of the said strip of land within the meaning of s. 108 d of the transfer of property act 1882 and therefore.
the trial companyrt partially decreed the appellants suit in that it rejected the appellants claim to the said strip of land but granted a declaration of easement for light and air through the said windows and for carrying said drain over the decree the appellant filed an appeal before the respondent also filed cross objections.
the principal ground on which the single judge founded his judgment was that the lease was both transferable and heritable and therefore had to be held as a permanent lease.
the letters patent bench answered all the three questions against the appellant holding that the said lease being a lease for building purposes and transferable was a lease for an indefinite period and therefore for the lifetime of the lessee the said dhanji that the said strip.
he also averred that part of the land comprised in plot number 93 used to be let out from time to time to persons including the appellants father who had executed a separate rent numbere dated july 21 1935 and who had under the said numbere been in possession thereof as a lessee from 1935 to 1941 and that he having been permitted a such a lessee the use of the said strip of land to enable him access to the said leased portion of survey number 93 there was numberquestion of his having acquired any easementary rights by prescription over the said strip of land.
the respondents answer to the suit briefly was that the appellant was number entitled to the said strip of land either as failing under the said lease or as accession.
except for the drain extending upto 32 ft.
in support of that companyclusion the bench pointed out that the view companysistently taken by the high companyrt of bombay right from the decision in vaman shripad v. maki 1 was that such a lease is to be companystrued as one for the lifetime of the lessee and number as a permanent lease.
the appellant filed the suit in 1958 out of which this appeal arises urging that the said lease was a permanent lease that buildings had been companystructed on the leased land partly in 1906 and the rest in 1909 and 1922 that the said plot of land was subsequently demarcated into two survey numbers 94 and 93 that a strip of land 4 ft.
the judgment of the companyrt was delivered by shelat j. by a deed of lease dated may 5 1906 the prede cessor in title of the respondent let out to the appellants father an open portion of land measuring 26 ft.
desai for the appellant raised three companytentions in sup port of the appeal 1 that on a proper interpretation of the document of lease.
b of passage and c of draining water both waste and rain over the said strip of land.
according to the appellant the said companystruction made by the respondent shut off light and air which he had been enjoying from the aforesaid windows.
civil appellate jurisdiction civil appeal number435 of 1967.
there is a drain partly in plot number 94 and partly over the said strip of land which carries the entire waste water from the said building.
thus so far as the ground and first floors are company the appellant would number have the same amount of light and air.
against that judgment and district companyrt district companyrt and allowed the cross objections suit was dismissed.
on the first floor only three windows are affected and that too partially.
immediately to the west of survey number94 and forming part of survey number 93 was companyered by the said lease and was in his possession as part of the leased land or was acquired by him as accession.
out of a larger plot.
in view of his finding that the said strip of land had always been in the.possession of the appellant and earlier of his father ever since 1906 and thus had been acquired as an accession he companysidered it unnecessary to go into the question of easementary rights claimed by the appellant.
out of the structures put up by the appellants father the central building as shown in the plan produced by the appellant has windows on the ground first and second floors all opening on the western side.
rameshwar dial jaishi ram goel and a. d. mathur for the respondent.
on the ground floor all the five windows are affected.
the lease companytained iner alia the following even after the prescribed time limit i shall have a right to keep my structure on the leased out land so long as i like and i shall be paying to you the rent every year as stated above.
x 225 ft.
