Hon'ble Harsh Kumar,J.
(Delivered by Hon'ble Harsh Kumar, J.) This appeal under Section 96 of C.P.C. has been filed against the judgment and decree dated 24.2.2000 passed by Additional Civil Judge (S.D.), Bhadohi at Gyanpur (District Sant Ravidas Nagar) in Civil Suit No.131 of 1994, decreeing the suit with costs and passing a decree of declaration to the effect that plaintiff has an easmentary right over the disputed Gali in suit and for prohibitory permanent injunction for restraining the defendant from damaging or demolishing the Nali shown by letters ख, च, छ, ग in plaint map or obstructing the flow of water through the Nali as well as from closing the ventilators and windows and drain pipes or obstructing the use of air and light to the plaintiff's house through above windows and ventilators.
The brief facts relating to the appeal are that plaintiff Pyare Mohan filed Civil Suit No.131 of 1994 on 17.10.1994 with the allegation that the house shown by letters क, ख, ग, घ in plaint map originaly belonged to Beni Ram and was inherited by Jwala Prasad, who executed a registered will on 13.11.1980 in favour of plaintiff and his brother; that the above house is triple storied house and several ventilators and windows on each story opens towards East in 8 feet wide lane (Gali); that in the western side of the Gali there is 2 feet 3 inch wide Pakki Nali in which the water of the house of plaintiff flows through Nabdan (drain) of his house as well as through pipes from roofs and floors of triple storied house; that the plaintiff and his predecessors have always been continuously peacefully and without any interruption, flowing water through the Nali & pipes and have been taking light and air through the windows and ventilators in eastern wall of their house, for more than 20 years, as of right, and have acquired prescriptive right of easment to flow the water through Nali & pipes and take the light and air through windows and ventilators; that on 14.10.1994, the defendant threatened of demolition of the Nali and raising of a wall on western side of Gali after dismelting the pipes and of closing the ventilators and windows of the house of plaintiff, so as to obstruct and interfere in exercise of his easmentary rights to flow the water and take light and air.
The defendant filed written statement denying the allegations of plaint and contended that no water of the house of plaintiff did ever flow from the Nali in question and that he has no right to flow the water in the Nali in dispute or to take light and air through the windows and ventilators towards Gali; that the Gali in question is in exclusive ownership and possession of the defendant and neither any Parnala/pipe nor any Nabdan (drain) nor any window or ventilator of the house of plaintiff opens or ever existed towards the Gali in question nor the plaintiff has any right to flow the water in, and take light and air from, the Gali in question; that across the Gali in question there is house of Satendra Kumar, which has been purchased by him from Smt. Fatima Bibi, Asgar Bibi etc. and in the sale deed of the house of Satendra Kumar, western boundary has been mentioned as 'the Gali of defendant'; that the dirty water of the house of plaintiff flows towards North in municipal drain; that the suit is legally not maintainable and is liable to be dismissed with costs.
Upon parties pleadings, learned trial court framed the following nine issues:-
(i) whether the plaintiff has easmentary right to flow drain water of his house in the Pakki Nali shown by letters क, ख, च, छ in plaint map as mentioned in plaint?
(ii) whether plaintiff has an easmentary right of way over Gali shown by letters ख, य, र, ग in plaint map as mentioned in plaint?
(iii) whether the plaintiff has an easmentary right to take light and air from the Gali in East of his house through ventilators and windows and to flow water of his house through pipes and drain (Nabdan)?
(iv) whether the suit is barred by principles of estoppel and acquiescence?
(v) whether the suit is barred by provisions of Section 331 of U.P.Z.A. & L.R. Act?
(vi) whether the flow of water of plaintiff's house has always been towards North and not towards East as alleged in written statement?
(vii) whether the suit is barred by provisions of Section 34 of Specific Relief Act?
(viii) to what relief, if any, is the plaintiff entitled?
(ix) whether the suit is barred by time?
After completion of evidence of both parties, learned trial court decided issue nos.1, 2 & 3 affirmatively in favour of plaintiff and issue no.4, 5, 6, 7 & 9 negatively against the defendant and consequently decreed the plaintiff's suit with costs for the reliefs prayed for.
Feeling aggrieved, the defendant has preferred this first appeal.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the defendant-appellant contended that the impugned judgment and decree are bad on facts and law; that the plaintiff-respondent has no Nabdan (drain) of his house towards East in the Gali or in the Nali on western side of the Gali in question; that it is wrong to say that there are several windows or ventilators in the eastern wall of the triple storied house of the plaintiff or there are various pipes towards Gali from roofs and floors of second and third floor of the house of plaintiff; that the plaintiff did not acquire any prescriptive right of easment of taking light and air from Gali in qu