1. MUHAMMAD YAQUB ALI, C. J.-This appeal by special leave of this Court arises from the suit brought by Ch. Abdul Qayyum, respondent No. 1, against Jalal Din and Muhammad Din, appellants herein, for removal of the structure raised on the passage shown in red in the site plan annexed to the plaint. The suit proceeded on the averments that property No. P. 123/1, Main Bazar, Lakarmandi, Lyallpur, on which exists a commercial-cum-residen--tial building belongs to the respondent that its western door, windows and ventilators, open towards the passage which is commonly used by him and all the shopkeepers in the market and that the appellants had, without obtaining lease from the Government or permission of the Municipal Committee, constructed a chhapar on a portion of the passage and thereby blocked the door, windows, ventilators and water-spout of the building.
2. The suit was resisted by the appellants on the contention that the respon--dent was not entitled to open the door, windows and ventilators toward the disputed passage and that the suit filed by him was a counterblast to the suit filed by them earlier in respect of the construction raised by them on the platform which was an adjunct to shops Nos. 118 and 119 whose owner had 'surrendered it in their favour.
3. The suit was dismissed by the trial Court but on appeal the District Judge granted respondent No. 1 a mandatory injunction directing the appellants to remove the unauthorised structure and the stack of timber placed by them in front of the western door, windows and ventilators of the respondent's house and shop. The decree was based on the finding that the appellants were in unauthorised occupation of a portion of the passage which was Government property and vested in the Municipal Committed and that the appellants had, by raising the structure in dispute, blocked the passage of light and air to the adjoining property owned by respondent No. 1.
4. The appellants filed a second appeal in the High Court which was dismiss--ed in limine on 16-6- 1969. The learned Single Judge agreed with the District Judge that the appellants had raised an unauthorised structure on a common passage and placed a stack of timber on it which had closed the door and windows of the house of the respondent and narrowed the passage which was in common use of the respondent and the other shopkeepers in the market. In this view it was held that the District Judge was justified in issuing a mandatory injunction to the appellants to remove the unauthorised structure and the stack of timber.
5. Leave to appeal was granted to consider whether in the absence of a finding that respondent No. 1 had acquired a right of easement, the District Judge could grant a mandatory injunction to the appellants to remove the structure in question.
6. It appears that the legal position arising from the finding recorded by the District Judge and affirmed by the High Court was misconceived at the leave stage. The property owned and occupied by respondent No. 1 was in existence when the appellants encroached on the adjoining public path and raised the structure on it which blocked the passage of light and air to the adjoining property and blocked its entrance door, windows, ventilators and water-spout. It was thus a case of nuisance and injury caused to the property owned by respondent and against it he was, in law, entitled to ask for the relief of mandatory injunction.
7. It was contended by the learned counsel for the appellants that it was for respondent No. 1 to prove that he had acquired a right of easement in respect of the door, windows and ventilators opening towards the common passage and in the absence of a finding to that effect the District Judge was not justified in issuing mandatory injunction to the appellants for removal of the structure. The legal position has been misunderstood by the learned counsel. It is not a case of interference with the easement right of respondent No. 1 but of removal of a nuisance which is resulting in an injury to the property of respondent No. 1. On this finding the District Judge was competent to grant a mandatory injunction requiring the appellants to remove the unauthorised construction and logs of timber stacked against the door, windows and ventilators of the respondent's house and shop.
8. The result would have failed only if the appellants had proved that, by user of over 20 years, they had acquired a right of easement to block the passage of light and air to the property owned by respondent, or to close the door, windows, ventilators and water-spout of the adjoining property.
9. This was not even pleaded in their written statement. The contention that it was for respondent No. 1 to prove a right of easement in respect of these amenities is, therefore, not sustainable in law. We accordingly agree with the learned Judge in the High Court that no ground for interference with the judgment and decree passed by the District Judge was made out by the appellants.
10. SALAHUDDIN AHMED, J.-I agree.
11. MUHAMMAD AFZAL CHEEMA, J.-I agree.
12. DORAB PATEL, J.-I agree.