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Madhya Pradesh High Court · body

2006 DIGILAW 17 (MP)

Shashi Agrawal v. Usha Agrawal

2006-01-03

K.K.LAHOTI

body2006
ORDER 1. Petitioner aggrieved by the order Annexure P-7 dated 25.7.2005 in Civil Suit No. 318A/2005 by IX Additional Judge to the Court of District Judge, Jabalpur, in Misc. Civil Appeal No. 63/2005, has filed this petition. Both the Courts by the aforesaid orders have refused to grant temporary injunction in favour of the petitioner. . 2. Facts as stated by the plaintiff before the trial Court ere that the plaintiff is owner of the house property bearing House No. 739, 739/1 situated at Karamchand Chowk, Marhatal, Jabalpur. This house was succeeded by her by a Will dated 5.12.1987 executed by her father-in-law late Rameshwar Prasad. Before getting the aforesaid property, a hotel in the name of 'Standard Hotel' was running in the property. In the eastern side of the house, there are window, sky lighters and ventilators affixed out of which light and air is being enjoyed. Defendant No.1 purchased an eastern side house and started raising construction. Because of the construction, windows, sky-lighters and ventilators shall be closed and the plaintiff would be deprived with the easementary right of light and air which is irreparable loss. Defendant No.1 is not raising construction as per permission granted by the Municipal Corporation. On the aforesaid ground, the suit was filed and an application for issuance of temporary injunction during the pendency of the suit was also filed. 3. The defendant-respondent contested the case on the ground that after obtaining due sanction and permission from Municipal Corporation, defendant No.1 is raising the construction. Plaintiff, just to obstruct the construction, has filed the suit. In the windows, some coolers, air-conditioners are affixed and some windows are open. The plaintiff is having light and air from the other side. The ground floor was also constructed just adjoining to the plaintiff's building but no objection was raised by the plaintiff at the time of the construction of the ground floor. The house is situated in the commercial area in which there is non-provision for leaving any space between the two buildings. As per trend all the constructions are being raised adjoining to the building. On the aforesaid ground, suit and the applications both were contested by the respondent. 4. The house is situated in the commercial area in which there is non-provision for leaving any space between the two buildings. As per trend all the constructions are being raised adjoining to the building. On the aforesaid ground, suit and the applications both were contested by the respondent. 4. The trial Court found that: (i) The plaintiff has not pleaded that since last 20 years she is using light and air from the window peacefully and uninterruptedly, though it is pleaded that in the house, Standard Hotel is being run and after Will dated 5.12.1987 she is exclusive owner of the property. (ii) At the time of the construction of the ground floor, plaintiff has not raised any objection in respect of such easement while at the ground floor, both buildings are adjoining. (iii) The suit building is situated in the dense populated area and in commercial area. At that place all the constructions are being made just adjoining to the building. (iv) That, defendant No.1 has purchased the property on which he has a right to construct. (v) That the defendant No.1 has obtained due permission from the Municipal Corporation and if the construction is restrained then it will deprive the defendant No.1 from the utility of the property. (vi) That the plaintiff is having alternative arrangement of light and air by using fans and coolers from the windows situated on the other side of building except on the eastern side and there is no obstruction for the light and air. On the aforesaid grounds the trial Court rejected the application under Order 39 Rules 1 & 2 CPC. 5. Against the order of the trial Court, dated 25.7.2005, petitioner preferred an appeal before the IX Additional Judge to the Court of District Judge, Jabalpur. The appellate Court decided the appeal vide order dated 16.8.2005 on following findings: (a) That. the plaintiff has not pleaded right of easement specifically in respect of existence of windows, ventilators and sky lighters from the time of her predecessors. (b) There is no specific pleading in respect of the easementary right of the plaintiff as it is not pleaded since when these are in existence. (c) That the plaintiff has not filed Will or map of Municipal Corporation in which the plaintiff's windows, ventilators and sky-lighters are being shown. (b) There is no specific pleading in respect of the easementary right of the plaintiff as it is not pleaded since when these are in existence. (c) That the plaintiff has not filed Will or map of Municipal Corporation in which the plaintiff's windows, ventilators and sky-lighters are being shown. (d) That the plaintiff has failed to prove her easementary right under section 15 or easement of necessity under section 13 of the Easement Act. (e) Defendant has duly obtained permission from the Municipal Corporation for raising construction for which objection was not raised by the plaintiff. (f) That the construction is being made as per approved map from the Municipal Corporation. (g) That, the defendant in the affidavit has very specifically stated that she made construction as per permission, hence it cannot be said that the defendant raised any construction contrary to the sanction by the Municipal Corporation. (h) No irreparable loss is caused to the plaintiff, if the temporary injunction is not granted. On the aforesaid grounds, the appellate Court dismissed the appeal. These orders are under challenge in this writ petition under section 227 of the Constitution of India. 6. Learned counsel appearing for the petitioner raised following contentions: (i) That, it is not in dispute that various windows, ventilators and sky lighters are in existence towards eastern side of the building where the defendant is raising construction just adjoining to the house of the petitioner without leaving any space for light and air. (ii) That, existence of window, ventilators and sky-lighters is not in dispute. This position is in existence since long and the question of easementary right is yet to be decided by the trial Court. (iii) If the existing of the aforesaid is not in dispute: petitioner is entitled for the temporary injunction during pendency of the suit. If construction is permitted without leaving any space for light and air, petitioner's right to light and air shall vanish and position shall become irreversible after construction. In these circumstances, even if suit is decreed, plaintiff would not be entitled to get relief and during pendency of the suit, right of petitioner to get light and air from the windows, ventilators and sky-lighters shall remain in abeyance which is a continuous wrong and irreparable loss. In these circumstances, even if suit is decreed, plaintiff would not be entitled to get relief and during pendency of the suit, right of petitioner to get light and air from the windows, ventilators and sky-lighters shall remain in abeyance which is a continuous wrong and irreparable loss. (iv) That, existence of aforesaid by itself shows a prima facie case in favour of the petitioner and if no injunction is granted, petitioner is going to suffer irreparable loss. Balance of convenience also lies in favour of the petitioner. . 7. Reliance is placed to the apex Court judgment in Maharwal Khewaii Trust v. Baldev [2005(1) MPLJ 447] and Single Bench judgment in Onkar Nath v. Ram Nath Gupta [AIR 1985 Delhi 293] and submitted that this petition may be allowed and temporary injunction may be issued in favour of the petitioner. 8. Learned counsel for respondent No.1 vehemently opposed the petition and supported the order passed by the Court below. Contentions of the respondents are as under: (i) That, section 13 of the Easement Act will not apply in this case as there is no question of easement of necessity and the plaintiff has not claimed any right under section 15 of the Easement Act by acquisition of easementary right by using light and air for continuous for a period of 20 years. In these circumstances, the Court below has rightly rejected the application for temporary injunction. (ii) Plaintiff has not sought declaration in respect of the easementary right. In the sale-deed, window, ventilator or sky lighter has not been shown or any right in this regards to the petitioner has been passed by the predecessors of the building. Plaint is silent about use of aforesaid right for last 20 years. In these circumstances, no case is made out in favour of the petitioner. (iii) Municipal Corporation has accorded permission to the respondent for construction on 1730 sq.ft. and the respondent No.1 shall raise construction only on the aforesaid area. The construction is non-residential and there is no question of leaving any space between the buildings. The ground floor is adjacent to the plaintiff's building without leaving any space between the buildings and the same position continues on first floor and onwards. 9. and the respondent No.1 shall raise construction only on the aforesaid area. The construction is non-residential and there is no question of leaving any space between the buildings. The ground floor is adjacent to the plaintiff's building without leaving any space between the buildings and the same position continues on first floor and onwards. 9. Learned counsel for respondent No.2 submitted that if any construction is raised contrary to the permission granted by the Municipal Corporation, the Municipal Corporation shall take steps in this regard. It is submitted by the respondent No.2 that the respondent No.2 shall obey the order as may be passed by this Court. 10. To appreciate rival contentions of the parties, firstly, the position on the spot may be seen. Both parties have filed photographs of the buildings. As per petitioner, situation on the date of filing of the petition is appearing as per photograph Annexure P-5 in which all the windows, ventilators and sky lighters are shown, which are open and the light and air are available to the petitioner. Though respondent No.1 has prepared some columns with iron bars to construct it but on the aforesaid date, no construction was made. As per photograph submitted by respondent No.1, it is submitted by her that on the date of filing of the petition, substantial construction was made by respondent No.1 and finishing work was under the process. Latest photograph is Annexure R-7 which shows the factual position that most of the construction is complete by constructing roof of two floors. The only windows of the third floor are open and others are under the roof but walls are not constructed till date. It is also submitted by the respondent No. 1 that as per photographs Annexure R-1 and R-2 windows, ventilators and sky-lighters are available to the petitioner from the other side of the building and the respondent No.1 is entitled to complete construction in the eastern side. 11. From the perusal of the aforesaid photographs and the order passed by the Court below, it is not in dispute that on the eastern side of the plaintiff's building, there are several windows, ventilators and sky lighters which are to be closed by the respondent No.1 by raising construction. 11. From the perusal of the aforesaid photographs and the order passed by the Court below, it is not in dispute that on the eastern side of the plaintiff's building, there are several windows, ventilators and sky lighters which are to be closed by the respondent No.1 by raising construction. Though at the time of the filing of the petition, as per photograph Annexure R-7, respondent No.1 has already constructed partially by laying slabs in the building but still the aforesaid windows, ventilators and sky-lighters are not closed completely. 12. The respondent No. 1 has started construction in somewhere in the month of June-July, 2005. Municipal Corporation has granted permission before filing of the suit. Though case of the respondent No.1 is that she is raising construction as per sanctioned map while petitioner's case is that the construction is not being raised as per sanctioned map and the respondent No. 1 is raising construction contrary to the permission. But the fact remains that before raising the construction by the respondent No.1, petitioner's building was in existence. Aforesaid building was having various windows, ventilators and skylighters. This building was purchased by the predecessors of the respondent No.1 on 1.5.1972. The sale-deed is on record as document No. 3 which is filed by the respondent No.1. Though in the sale-deed, there is nothing in respect of the windows, ventilators or sky lighter, but it is apparent that the aforesaid building was three storeyed building at the time of the sale-deed. It is not the case of the respondent that in recent past, plaintiff has opened windows, ventilators or sky-lighters. Though in this regard there is no specific pleading of the plaintiff also claiming easementary right in this regard, but exitence of windows, ventilators and sky lighters for a quite long time is not in dispute. If any construction is permitted to the respondent No.1 at this stage by which aforesaid windows, ventilators and sky lighter are closed, position shall become irreversible in case the suit is decreed and during pendency of the suit, petitioner shall be deprived of the right of air and light. Aforesaid is a continuous wrong while the petitioner is entitled for light and air in day to day use. In these circumstances, petitioner was entitled for temporary injunction during pendency of the suit. Aforesaid is a continuous wrong while the petitioner is entitled for light and air in day to day use. In these circumstances, petitioner was entitled for temporary injunction during pendency of the suit. Whether the plaintiff has acquired prescriptive right of easement or is entitled to easement of necessity is yet to be decided by the trial Court. But merely on existence of windows, ventilators or sky lighters for a long period, petitioner was entitled for a temporary injunction during pendency of the suit. But in case respondent No.1 is restrained to raise construction during the pendency of the suit, petitioner is under an obligation to compensate the respondent No.1 in case the suit of the plaintiff fails. In aforesaid circumstances, during pendncy of the suit, petitioner is entitled for temporary injunction but on certain terms. 13. The apex Court in Mahanval Khewaji Trust (supra), considering the question held: "10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate Court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also be permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages, or, in an appropriate case, the Court may itself award damage for the loss suffered, if any, in this regard. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages, or, in an appropriate case, the Court may itself award damage for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the Courts below, namely, the lower appellate Court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial Court is restored." 14. In Onkar Nath (supra), Delhi High Court held: "7. It has been also observed that an injury may be caused either by the fulfillment of the duty cast by the statute or by failure to carry it out or by negligence in its performance Learned counsel submits that the Municipal Corporation of Delhi has failed to fulfil the duty by its negligence as the unauthorised construction was not restrained be the Corporation. In Smt. Lakashmimoni Dassi [AIR 1941 Cal. 391], it has been observed that where permission to build is given contrary to the bye-laws and whereby premises of adjacent .owner is injured as to light, air, health and amenities, the Corporation owes a duty to the adjacent owner and there is in the adjacent owner a legal right, as to found an application for mandamus. In Krishna Kali Mallik v. Babu Lal Shaw [ AIR 1965 Cal. 148 ], neighbour of plaintiff was constructing building in violation of municipal statutory rules relating to open space, back space, side space to be kept open at a building. It was held that the plaintiff has a right to sue the defendants and ask for an injunction. 8. In Smt. Ang Lhamu v. Smt. Ladena [AIR 1983 Sikkim 5], the plaintiff was granted an injunction against his neighbour defendant who was constructing building contrary to bye-laws of the Municipality. From these authorities, it appears that the plaintiff has a right to seek the aid of the Court in restraining his neighbour from raising construction contrary to bye-laws or from raising unauthorised construction. Raising of unauthorised construction will affect the rights of the plaintiff as under the Building Bye-laws, 1983 leaving set backs is mandatory. Admittedly, there is no sanction plan in favour of the defendants. Raising of unauthorised construction will affect the rights of the plaintiff as under the Building Bye-laws, 1983 leaving set backs is mandatory. Admittedly, there is no sanction plan in favour of the defendants. They have not made any application for obtaining any sanction for raising a building, but still their intention from the report of the local commissioner is clear that they intend to raise structures. Such a structure cannot be raised without permission of the authorities concerned. If a structure is raised without permission it would affect the right of the plaintiff. therefore do not agree with the observation of the Lower Courts that the plaintiff has no prima facie case; that his right is not affected. The plaintiff is the owner of the building, while the defendants are alleged to be the owner of the adjoining plot. If the defendants are allowed to raise unauthorised structure, the right of the plaintiff is likely to be affected. Learned counsel for the defendants refers to the judgment in Sarojini Market Shop-keepers Association (Regd.) v. Union of India [(1964) 66 Pun LR 1144], wherein it has been observed that the objection about the construction of a building without the sanction of the local authority concerned cannot be raised by a third person and it can be raised only by the authority concerned. With due respect, I am not inclined to follow this judgment in view of the observations of the Supreme Court in K. Ramadas Shenoy v. Chief Officers [ AIR 1974 SC 2177 ] (supra). Learned counsel for the defendants submits that the plot of land is not an open plot of land and is a building and in this connection he refers to judgment dated 5.9.1969 of Mr. V.S. Aggarwal in re: Jai Kishan v. Jitender, wherein it appears that the present plaintiff appeared as a witness who is alleged to have deposed that there was a Khoka. The lower appellate Court has concluded that there is an open plot of land. What is the significance of the statement of the plaintiff in the said litigation and in what context that statement was made are the matters to be gone into during the trial of the suit. But at this stage, it cannot be said that there was any tin-shed. What is the significance of the statement of the plaintiff in the said litigation and in what context that statement was made are the matters to be gone into during the trial of the suit. But at this stage, it cannot be said that there was any tin-shed. This is a fit case where the Courts below ought to have injuncted defendants from raising unauthorised construction on the plot in question. If the defendants are not restrained, it may be difficult later on to get the said structures demolished. The defendants have not been able to make out a case for carrying out the repairs within the meaning of old Bye-laws or to make out a case that no permit is required for the alleged construction or alteration under the new Bye-laws. The Courts below acted illegally in the exercise of their jurisdiction. The plaintiff has a prima facie case. Balance of convenience is in his favour. He will suffer irreparable injury if defendants are not restrained. I, therefore set aside the impugned orders and' restrain the defendants 1to 3 from raising any construction over the plot marked 'X' situated on the East of the property of the plaintiff bearing Municipal No. 4647/1 at 21 Darya Ganj, New Delhi without obtaining necessary permit or sanction from the concerned authorities till the decision of the suit. Parties are left to bear their own costs." 15. In this case what is the prima facie is to be seen and whether issuance of temporary injunction shall cause irreparable loss to the respondent or respondent may be compensated by way of cost. Whether balance of convenience is in favour of the petitioner or in favour of the respondent No. 1 is to be seen. 16. So far as prima facie is concerned, existence of windows, ventilators and sky-lighters for a long period by itself is sufficient to presume a prima facie case in favour of the petitioner. Whether plaintiff is entitled for a relief under section 15 of the Easement Act or not is yet to be decided and in this regard at this stage on the basis of the pleadings of the parties. if any finding is recorded. it shall cause serious prejudice to the petitioner. Depriving the petitioner from light and air is an irreparable loss which cannot be measured in terms of money. if any finding is recorded. it shall cause serious prejudice to the petitioner. Depriving the petitioner from light and air is an irreparable loss which cannot be measured in terms of money. Light and air is a need of day-today life and cannot be measured in terms of money. In these circumstances, if petitioner is deprived with aforesaid, irreparable loss will be caused to the petitioner and not to the respondent No.1, as respondent No.1 can be compensated in term of money, in case suit is dismissed. Balance of convenience is also in favour of the petitioner whose windows, ventilators and sky-lighters are going be closed by respondent No.1. 17. Now the respondent No.1 has raised substantial construction and as per undertaking submitted by the respondent No.1 before this Court on 30.8.2005. construction-has been stopped. Respondent No.1 has started construction after getting due permission from the Municipal Corporation and was entitled to continue with the construction but because of the aforesaid, she is being deprived with the construction. In these circumstances, petitioner in case of dismissal of the suit is liable to compensate the respondent No.1. 18. The Courts below while considering the matter have not adverted themselves to the aforesaid situation and have rejected the application of the petitioner on the aforesaid ground which in the opinion of this Court are not sufficient to reject the application. Petitioner has made out a case for issuance of the temporary injunction in her favour. 19. Consequently, this petition is allowed and a temporary injunction is issued in favour of the petitioner and against the respondent No. 1 in following terms: . (i) Respondent No.1 is restrained to raise construction so far as it relates to obstruction to the petitioner in respect of light and air. However, respondent No.1 may complete her construction leaving four feet space between both the buildings so that petitioner may get light and air during pendency of the suit, or status-quo as on today be maintained till the decision of the suit. (ii) This order shall be operative on filing an undertaking by the petitioner within a period of two weeks from today that she will duly compensate the defendant No. 1 in case her suit is dismissed and in this regard a surety of Rs. 1,00,000/- shall be furnished by the petitioner before the trial Court. (ii) This order shall be operative on filing an undertaking by the petitioner within a period of two weeks from today that she will duly compensate the defendant No. 1 in case her suit is dismissed and in this regard a surety of Rs. 1,00,000/- shall be furnished by the petitioner before the trial Court. (iv) The trial Court shall expedite the hearing of the case and shall make all endeavour to decide the suit expeditiously as far as possible within a period of six months from the date of communication of this order. Both parties shall cooperate with the trial Court and will not be entitled to seek any unnecessary adjournment in the matter. No order as to cost.