' IFTIKHAR MUHAMMAD CHAUDHARY, J.---This petition has been filed for leave to appeal against judgment, dated 10th July, 1998 passed by High Court of Balochistan in Civil Revision 29 of 1998.
2. Succinctly stating facts of the case are that petitioners are owners of the house constructed upon Khasra No.1477, Ward No.15, Mouza Urban, Tappa Quetta, bearing Municipal No.1-5/2-B, First Floor, Regal Hotel, Suraj Ganj Bazar, Quetta adjacent to the building (Regal Hotel and House) respondent purchased a shop and demolishing the same started construction of multi-storeyed building including the basement etc. The petitioners apprehended that if the coligtruction of the multi-storeyed building is completed it would block the passage of light and air of their house passing through ventilators, exhaust fan and stairs of the house, therefore, a suit for declaration and injunction was instituted by them praying for the relief as follows:-- "(a) declaring that the construction raised by the defendant would block the light and air going to the house of the plaintiffs through ventilators exhaust and stairs;
(b) declaring that the defendant has no right to raise construction in such a manner to block the light and air going to the house of the plaintiffs;
(c) declaring that the plaintiffs have every right to the enjoyment of light and air through ventilators exhaust fan and stairs towards Suraj Ganj Bazar, Quetta;
(d) declaring that by construction of laboratory and use of chemicals on 1st floor therein would create hardships for the plaintiffs;
(e) permanently restraining the defendant from making Laboratory on upper floor or using chemicals therein which is injurious to the health;
(f) the defendant through permanent injunction may be restrained from raising construction of shop in such a manner which would block the air and light of the house of the plaintiffs towards Suraj Ganj Bazar, Quetta;
(g) award any other appropriate relief in the circumstances of case;
(h) award costs of the suit."
3. The suit was contested by the respondent denying the claim of the petitioner and also asserting his right to use the property owned by him to the best of his interest.
4. Alongwith plaint an application for interim relief was also filed. However, learned trial Court decreed the suit on 8-8-1997. In appeal the decree of the-trial Court was reversed vide order, dated 31-10-1997 passed by Additional District Judge-II, Quetta. Similarly revision filed by petitioners before learned High Court of Balochistan has also been rejected by means of impugned judgment, dated 10-7-1998.
5. Mr. S.A.M. Quadri, learned counsel for petitioners contended that during pendency of suit local commissioner was appointed who after inspecting the site submitted his report on 24th July, 1997 supporting the case of the petitioners.
6. On the other hand Mr. Tariq Mehmood, learned counsel for respondent contended that in the instant case report of the Local Commissioner cannot be accepted because he did not enter inside the house of the petitioners to observe as to whether if the multi-storeyed building is constructed adjacent to their house it will block the passage of light and air.
' However, Mst. Daim Bibi, the original owner of the house now owned by the petitioners got recorded statement before the Local Commissioner and stated that the house which. Was originally owned by her gets light and air from the western and southern side. Learned counsel further stated that the petitioners were claiming right of easement, therefore, it was incumbent upon them to have produced cogent evidence to establish their claim because if they will succeed in doing so, the respondent who is the bona fide owner of the premises on which he wanted to construct multi-storeyed building will be deprived to enjoy full benefits of the building owned by him. To substantiate his arguments reliance was placed on 1984 CLC 3244.
7. We have heard the learned counsel for the parties and have also carefully gone through the order of the trial Court as well as Appellate Court and the impugned order passed by the High Court of Balochistan. It may be noted that the Appellate Court had evaluated thoroughly the evidence available on record and on basis of independent assessment concluded that no case is made out by the petitioners. Similarly the revisional Court maintained the finding of the Appellate Court because no irregularity or illegality was pointed out in the order. With the assistance of the learned counsel for the parties we have also gone through the report of the Local Commissioner but in our opinion it is not admissible because he did not prepare the same after making actual observation by entering the house to ascertain as to whether construction of multi-storeyed building will block passage of light and air of the house of the petitioners. Contrary to his report the petitioners' own mother Mst. Daim Bibi who appeared before the Local Commissioner and gave statement, categorically admitted that the house is getting light and air from the western and southern side. Therefore, learned Appellate Court taking into consideration overall effect of the material available on record concluded that no case is made out for-grant of relief as prayed for At this juncture reference to the judgment relied upon by the respondent's counsel may not be. Out of context: A careful perusal of the relevant para. Of this judgment indicates that the learned Judge in Chamber of Sindh High Court has placed reliance on two judgments reported in 1904 AC 179 and AIR 1938 Sindh 37. In the last judgment it has been observed that even though a right of easement of light and air is established, a person is not entitled to an injunction unless the disturbance of his easement appreciately and materially affects his enjoyment of the building in respect of which the easement is claimed. Applying this test on the facts of the instant case and keeping in view the statement of Mst. Daim Bai we are of the opinion that on account of construction of multi-storeyed building respondent has not infringed any right of easement of light and air of the petitioners because their house is getting both light and air from the western and southern sides and the disturbance on account of the construction of the building adjacent to their house has not materially affected the enjoyment of air and light by the petitioners.
' Thus for the foregoing reasons we see no merit in the petition which is accordingly dismissed and leave to appeal refused.