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2002 DIGILAW 93 (PNJ)

Lal Chand v. Kashmiri Lal

2002-01-18

BAKHSHISH KAUR

body2002
Judgment Bakhshish Kaur, J. 1. Kashmiri Lal had filed a suit for permanent injunction that the defendants Lal Chand and others be directed to remove the construction made by them by way of constructing a room, thereby obstructing the parnala and a ventilator existing in the eastern wall of the house of the plaintiff at point mark `X&Y depicted in the site plan attached with the plaint. 2. The suit was decreed by the learned Sub-Judge Ganaur on October 25, 1990 whereby the defendants were directed to make provision for the opening of ventilator existing in the eastern wall of the house of the plaintiff. 3. The decree-holder for the execution of the decree had filed execution application. The judgment-debtor filed objection to the report of the Local Commissioner, which was dismissed by the learned Civil Judge (Senior Division) Phillaur vide order dated February 16, 2000. Civil Revision No. 1509 of 2000 preferred against that order was dismissed by this Court on April 24, 2000 vide Annexure P-5. 4. The learned executing Court, as per order dated February 02, 2001 directed the Local Commissioner to remove/demolish the construction of the judgment- debtor to make provision for opening of the ventilator existing at the eastern wall of the house so as to secure the execution of the decree in real terms. It is this order which has been assailed by the petitioner-judgment debtor in this revision petition. 5. I have heared Shri Sumeet Mahajan, learned counsel for the petitioners and Shri R.C. Dogra, learned counsel for the respondent. 6. The sole grievance of the petitioner is that with the falling of the roof of the dominant heritage, the easement right cease to exist in favour of the plaintiff, thus the case is covered under Sections 41 and 42 of the Easement Act, 1882. 7. Shri Sumeet Mahajan, learned counsel for the petitioner further elaborating his argument on the point of dominant heritage, contended that both the courts observed that roof of the room of the dominant heritage has fallen down, therefore, considering this fact as is evident from the photographs placed on record, the executing Court cannot go ahead with the decree by issuing directions to the Local Commissioner to remove and demolish the construction of the judgment debtor for the purpose of making provision for opening up the ventilator existing at the eastern wall of the house of the plaintiff. In the decree sheet, there is no such direction given to the defendant (now petitioner) to remove the construction, therefore, the impugned order is illegal and it being beyond the scope of the decree, requires to be set aside. Thus, the execution application has become infructuous. 8. It is a sad state of affairs that execution of a valid decree having been passed on the basis of the principle enunciated under the Easement Act is sought to be circumvented by the judgment debtor by way of constructing a room, which obstructs the ventilator opening on the eastern wall of the house of the decree holder, which had been existing there for a long time. The Local Commissioner had submitted his report Annexure P-2 on May 14, 1997. He has specifically reported that the ventilator in dispute mark `X&Y shown in blue colour in the site plan has been obstructed by raising two rooms on the eastern side of the ventilator by the judgment debtor. He has further reported that no air, light can pass through the ventilator due to this construction. Thus, Shri N.K. Banta, Advocate was again appointed as Local Commissioner as per order dated February 16, 2000 and that order was again challenged by the judgment debtor vide Civil Revision No. 1509 of 2000 which was dismissed vide order Annexure P-5 on 24.4.2000. 9. On the contrary, Shri R.C. Dogra, learned counsel for the respondent contended that easement gets extinguished when either the dominant heritage or the subservient heritage is completely destroyed. This having not taken place in the case in hand, the revision is liable to be dismissed. To support his argument, he has placed reliance on "Makhan Lal v. Indra Prasad, AIR 1967 Allahabad 302". The facts of the case are akin to the facts of the case in hand. It was a case where the plaintiff owned a house `ABCD as depicted in the map attached with the plaint excluding the room shown as `CEFG. His case was that the room of the defendant was 7 ft. long and 7 ft. high and over this room of the defendant, there was the `Duchhatti of the plaintiff and over the `Duchhatti was his room on the first floor. He used to enjoy the vertical support of the defendants wall for the purpose of his `Duchhatti and the room over it. long and 7 ft. high and over this room of the defendant, there was the `Duchhatti of the plaintiff and over the `Duchhatti was his room on the first floor. He used to enjoy the vertical support of the defendants wall for the purpose of his `Duchhatti and the room over it. It was said that in the rains of 1958 the western and southern walls of the defendants room fell down with the result the roof of the defendants room along with the Duchhatti and the plaintiffs room in the first floor came down which caused loss to the plaintiff. The suit for permanent injuntion filed by the plaintiff was decreed and it was directed that the construction would be made at the first instance by the defendant and in case he failed to carry out the construction, the plaintiff would be entitled to get it down through the Court at his expenses. It was, therefore, observed under para 10 that dominant heritage in this case is the house `ABCD of which the room standing on the defendants room `CEFG is a part. It cannot be said in this case that there was a complete destruction of the dominant heritage and on the facts of the case and admission of the defendant, it is also proved that there is neither complete destruction of servient heritage also. Therefore, there is no question of the applicability of Section 45 of the Easement Act. 10. In the given case in hand also, there is no complete extinguishment of either the dominant heritage or the servient heritage. Thus, Sections 24 and 25 of the Easement Act would come into play. Sections 24 and 25 of the Act read as under :- "24. The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible, and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage. Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights." "25. Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights." "25. The expenses incurred in constructing works, or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant heritage." 11. As regards the appointment of the local commissioner and a specific direction given to him as per the impugned order is concerned, by no stretch of reasoning, can it be said that the direction so given by the Court amounts to going behind the decree passed in favour of the plaintiff. In fact, it is for the execution or the implementation of the decree that the executing Court had given directions, particularly where the defendant who, as per decree passed against him, was directed to make provision for opening of the ventilator existing in the eastern wall of the house of the plaintiff at mark `X&Y shown in the site plan, has failed to comply with the decree. Thus, no illegality or infirmity can be found in the impugned order as the decree has not been executed for more then a decade on account of the resistance put by the petitioners-judgment debtors. In view of the aforesaid, there is no merit in this civil revision. The same is hereby dismissed with costs, quantified at Rs. 5,000/-. Revision dismissed.