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2008 DIGILAW 103 (ORI)

SARAT KUMAR PANDA v. RAGHUNATH PATHI SASTRL

2008-02-04

A.K.PARICHHA

body2008
JUDGMENT : A.K. Parichha, J. - Both the appeals arise out of a common judgment passed by the learned 1st Additional District Judge, Cuttack in Title Appeal Nos. 61 of 1987 and 62 of 1987 confirming the decree passed by the learned Civil Judge (Junior Division) 1st Court, Cuttack in T.S. No. 110 of 1980. 2. The original Plaintiff, Smt. Satyabhama Debi, W/o. Raghunath Pathi Sastri filed the above noted suit with the pleading that she purchased the land bearing plot No. 1280 at Chandinchowk along with a single storied building standing thereon in the year 1958 and after purchase, added two more stories to that building and through the doors and windows on the eastern side wall of that house, enjoyed free flow of light and air for more than 20 years, thus perfecting her right of easement in that regard. She pleaded that plot No. 1281 lies to the east of her land having and area of Ac.0.031 dec. and Defendant purchased Ac.0.016 dec. out of the prior adjoining to the Plaintiff's land on 14.4.1970 and thereafter started construction on that land. Since such construction obstructed free flow of light and air to the house of the Plaintiff through the windows and doors on the eastern wall, she filed the suit for permanent injunction to restrain the Defendant from making any construction on his purchased land. 3. The Defendant contested the suit with the plea that there was no door or widow on the eastern wall of the Plaintiff's house prior to 1968, but the Plaintiff and her husband forcibly opened the doors and widows on the eastern wall of the 1st and 2nd floor in the year 1968 and constructed the balcony on the 2nd floor in the year 1978 in spite of the protest of the Defendant. Defendant specifically pleaded that there was a building on his purchased land covering the entire plot, which was demolished and in that place he is raising construction. Thus, while denying the claim of the Plaintiff's acquisition of easementary right, Defendant set up counter claim for closure of the door and windows and removal of balcony from the eastern wall of the Plaintiff. From the pleadings, learned Munsif framed as many as 13 issues and received evidence of the parties. Thus, while denying the claim of the Plaintiff's acquisition of easementary right, Defendant set up counter claim for closure of the door and windows and removal of balcony from the eastern wall of the Plaintiff. From the pleadings, learned Munsif framed as many as 13 issues and received evidence of the parties. On consideration of such evidence, learned trial Court came to the conclusion that the Defendant has got title over the land purchased by him, there was no sweeper passage adjoining the east of Plaintiff's building, the Plaintiff has alternative way of getting light and air from north and south, the Plaintiff was not in enjoyment of free flow of light and air continuously for 20 years or more and the construction of the Defendant will not affect his easementary right of light and air. Accordingly, learned trial Court rejected the Plaintiff's claim of easementary right and refused the prayer for permanent injunction restraining the Defendant from raising any construction over his land. However, the learned trial Court directed the Defendant to raise construction leaving a space of 3 ft. from the Plaintiff's building. Defendant challenged the direction for leaving a space of 3 ft. from the Plaintiff's building in T.A. No. 61 of 1987. He also challenged the denial of his counter claim regarding removal of door, window and balcony from the eastern wall of the Plaintiff's building in T.A. No. 62 of 1987. The Plaintiff also preferred cross objection in both the appeals. The appellate Court heard the appeals concurrently and dismissed the appeals and cross objection and confirmed the judgment and decree of the learned trial Court. Aggrieved by such orders, the Defendant-Appellant has preferred the present appeals. The Respondent-Plaintiff has also filed cross objection. 4. Since both the appeals and cross objection arise out-of a common judgment, those were heard together and are disposed of by this common judgment. 5. The appeals and cross-objection were admitted for consideration on the following substantial questions of law. (i) Whether in view of the findings of the lower Court that there was no sweeper's passage in existence on the land of the Plaintiff, it was correct on the part of the Courts below in decreeing the suit and thereby restraining the Defendant from raising any construction over the space of three feet on the 'B' scheduled land? (i) Whether in view of the findings of the lower Court that there was no sweeper's passage in existence on the land of the Plaintiff, it was correct on the part of the Courts below in decreeing the suit and thereby restraining the Defendant from raising any construction over the space of three feet on the 'B' scheduled land? (ii) When both the Courts below concurrently found that the Plaintiff has not acquired the right to enjoy flow of light and air from the east, should the Defendant be restrained from making any construction within 3 feet from the Plaintiff's eastern wall? (iii) When according to both the Courts below opening of windows and construction of projection (Balcony) do not clothe her with any easementary right should the Defendant's counter claim for his removal be removed? In cross objection, the correctness of the findings of the Courts below on issue Nos. 5, 6, 7 and 8 were challenged. 6. Mr. B.H. Mohanty, learned senior counsel appearing for the Appellant submitted that the Courts below fell into legal error by directing the Defendant to raise his construction leaving 3ft. space from the house of the Plaintiff, in view of their own conclusion that the Plaintiff-Respondent has no easementary right of light and air through the doors, windows of the eastern walls and had also no sweeper's passage of 3 feet wide beyond the eastern wall. According to him, once the Plaintiff had no land or passage beyond the eastern wall and had no easementary right of light and air on the eastern side, there was no scope for directing the Defendant Appellant to leave a space of 3 feet between his construction and the existing eastern wall of the Plaintiff. Regarding denial of the Courts below to the claim of the Defendant for closure of the doors and windows and demolition of the balcony on the eastern wall of the Plaintiff, he argued that the Defendant was not estopped from seeking such relief simply because he did not challenge the construction of windows and balcony on the eastern wall of the Plaintiff when they were constructed. In support of his subsequent contention, Mr. Mohanty relied on the cases of Sarjug Devi and Others Vs. In support of his subsequent contention, Mr. Mohanty relied on the cases of Sarjug Devi and Others Vs. Dulhin Kishori Kuer and Others, ; Meherban Lalli Pinjara v. Yusufkhan Kallu Pinjara AIR 1939 Nag 7; The Canadian Pacific Railway Company vs. The KingAIR 1932 108 (Privy Council) . 7. Mr. D.N. Patnaik, learned Counsel, learned Counsel appearing for the Respondent-cross objector, on the other hand, submitted that the doors, windows and balcony on the eastern wall of the Plaintiff's house are there for more than 20 years and has ensured easementary right of light and air in favour of the Plaintiff and the Defendant not having challenged the construction of such doors, windows and balcony on the eastern wall, is now estopped from demanding closure and demolition of such doors, windows and balcony. He argued that to protect the easementary right of light and air, learned Courts below should have objected the Defendants from raising any construction over Schedule 'B' land. 8. The Court of Second Appeal is normally not to interfere with the findings of the Courts below on factual issues and it must only delve into the substantial question of law where a law which are not settled. Only in exceptional cases where the Courts commit perversity in their approach or record the findings on no evidence or cast burden of proof on a wrong person, the Court of Second Appeal can interfere with the findings on factual issues. In the present case, the Courts below have recorded the reasons very clearly why and how construction of the Defendant-Appellant shall not affect the free flow of light and air to the building of the Plaintiff-Respondent. These Courts after considering the oral evidence of P.Ws. and D.Ws. and the report of the Commissioner, Ext.1 held that there are other windows on the other walls of the house of the Plaintiff. From the evidence, they also found that the Plaintiff opened the windows on the first floor of the eastern wall in the year 1968, windows and balcony of the 2nd floor in the year 1978 and for that reason by the date of the suit, the enjoyment of light and air through those doors, windows and balcony was less than 20 years. The approach and conclusion are in no way perverse or based on no evidence. The approach and conclusion are in no way perverse or based on no evidence. So, there is no scope for any interference with such finding of the Courts below. 9. After analyzing the evidence of the parties and the report of the Commissioner, the Courts below concurrently held that the Plaintiff had no sweeper's passage beyond the eastern side wall of the house. Now the Appellant questions as to whether after such finding, the Defendant-Appellant could be directed to leave a space of 3 feet wide between the eastern wall of the Plaintiff and his own construction. It was the admitted case of the parties that the Plaintiff-Respondent purchased the house on Schedule 'A' land in 1958 and the ground floor was having windows on the eastern side. The Defendant did not produce evidence to show that the old building on Schedule 'B' property had its wall adjoining to the eastern wall of the Plaintiff's house purchased in 1958. Moreover, if the old house on Schedule 'B' land had its western wall adjoining to the eastern wall of the house of the Plaintiff, then there could not have been any window on the eastern wall of the house of the Plaintiff on the ground floor. The building of the Plaintiff, admittedly, has already been constructed and the Defendant is now raising construction of has building on Schedule 'B' property. The Municipal Law postulates that between two neighbouring houses there should be some open space, the extent of which is prescribed and normally it should never be less than three feet. So, basing on this law as well as the principle of equity and convenience, learned Courts below directed the Defendant to raise his construction leaving a space of 3 feet beyond the eastern wall of the Plaintiff. Such direction had nothing to do with the existence or non-existence of sweeper's passage of the Plaintiff. 10. Regarding refusal of the Courts to close the windows and demolish the balcony on the eastern wall of the Plaintiff, fact remains that these windows and balcony were already in existence when the counter claim was made, in fact the Defendant admitted that the Plaintiff constructed the 1st floor in 1968 and opened the balcony and windows etc. in 1978. Regarding refusal of the Courts to close the windows and demolish the balcony on the eastern wall of the Plaintiff, fact remains that these windows and balcony were already in existence when the counter claim was made, in fact the Defendant admitted that the Plaintiff constructed the 1st floor in 1968 and opened the balcony and windows etc. in 1978. He stated that he raised objection, but no credible material is there to show that he complained abut the opening of windows and balcony to Municipality or other authorities. No doubt in the case of the Canadian Pacific Railway Co. v. The King (supra), the Privy Council held that encouraging construction under mistaken belief does not amount to encouragement and would not operate as estoppel and this principle was reiterated in the cases of Meherban Laili Pinjara fsnora) and Sarjug Devi (supra), by observing that before a person building on the land of Anr. has no equitable right to possession of the land on the ground that the true owner stood by and allowed the construction to proceed unless it is shown that he supposed the land to be his own. The above noted principle does not strictly apply to the present case because the Defendant-Appellant knowing fully well that the windows and balcony are being constructed on his adjoining land did not take any legal or appropriate step to stop such construction and only by way of cross objection many years after demanded closure of those windows and balcony. Learned Courts below, therefore, did not commit any legal error in rejecting such cross claim of the Defendant-Appellant. 11. The Respondent made allegation that the Appellant-Defendant is raising construction leaving 3 feet wide space on the ground, but he is not leaving such space on the 1st floor and 2nd floor. Learned Counsel for the Respondent indicated that the CDA authorities have also directed the Appellant to remove the unauthorized construction and therefore, the Appellant has violated the direction and interim order of the Court. The decree has been passed directing the Defendant-Appellant to raise construction leaving 3 feet side space between his construction and the eastern wall of the Plaintiff. The commissioner, who was sent to the spot by the Court reported that the Appellant has left 3 feet wide space on the ground. The decree has been passed directing the Defendant-Appellant to raise construction leaving 3 feet side space between his construction and the eastern wall of the Plaintiff. The commissioner, who was sent to the spot by the Court reported that the Appellant has left 3 feet wide space on the ground. The order of the CDA or the appellate authority does not form part of the evidence on record and therefore, now at this stage they are out of the zone of consideration. Be that as it may, once the decree is there, the same can be executed in appropriate manner and the Court of Second Appeal need not act an executing Court. 12. The aforesaid discussion shows that the Courts below did not commit any legal error in passing the impugned decree. The substantial questions of law are thus answered in negative and both the appeals and cross-appeals are dismissed on contest, but the peculiar circumstances without any cost. Final Result : Dismissed