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2008 DIGILAW 2797 (MAD)

Rajesh M. Shah & Another v. S. Mariappan

2008-08-01

R.BANUMATHI

body2008
Judgment :- This Second Appeal arises out of the concurrent findings of courts below decreeing the Plaintiffs suit for declaration of easementry rights of light and air and permanent injunction. Unsuccessful Defendants are the Appellants. For convenience parties are referred as per their rank in the original suit. 2.The Plaintiff and the Defendants admittedly are adjacent land owners. The case of the Plaintiff is that he purchased the property by EX.A1 sale deed dated 07.05.1973 and constructed a house in it after obtaining EX.A2 planning permission and plan approval from the Corporation of Chennai. He has been living in the house for the past 27 years. The adjacent property belonged to the Defendants was only a hut with ground floor only. The Plaintiff has been receiving light and air to his house consisting of ground, first and second floors through the windows and ventilators on the eastern wall of the house of the plaintiff. The Defendants who purchased the property on the eastern side demolished the hut and constructed a new house of the Plaintiff and thereby blocking free flow of light and air to the building of the Plaintiff and thereby the easementry right of the Plaintiff is affected. 3.The Defendants resisted the suit contending that Plaintiff has no easementry right of light and air to his property. According to Defendants, in a street house there was no restriction for construction in the entire area and the Plaintiff cannot restrain the Defendants from putting up construction in the entire land. The Defendants have applied for permission from the authorities concerned and the Defendants has demolished the building existed in the property purchased by him and already constructed a new building and easementry right of the Plaintiff has not been affected. 4.On the above pleadings relevant issues were framed in the trial court. Upon consideration of oral and documentary evidence, trial court held that Plaintiff has acquired easementry right of light and air and that Plaintiff has perfected his right for free flow of air and light. Trial court further held that the act of the Defendants in putting up construction is against Rules and such construction would affect easementry right of the Plaintiff and on those findings granted declaration and permanent injunction as prayed for. 5.Being aggrieved, Defendants have preferred appeal in A.S.No.546/2004. Trial court further held that the act of the Defendants in putting up construction is against Rules and such construction would affect easementry right of the Plaintiff and on those findings granted declaration and permanent injunction as prayed for. 5.Being aggrieved, Defendants have preferred appeal in A.S.No.546/2004. Observing that Defendants / Appellants have not produced the approval of the CMDA, lower appellate court confirmed the findings of the trial court and dismissed the appeal preferred by the Defendants. 6.Challenging the concurrent findings Defendants have preferred this Second Appeal. Notice of Admission was ordered and Respondent / Plaintiff has entered appearance. With the consent of both the counsel, the Second Appeal itself was taken up for hearing at the stage of "Notice of Admission". During the course of arguments the following substantial questions of law were raised for consideration: a)Whether the Plaintiff is entitled to get absolute easementry right through the windows of the Eastern wall of the schedule A property, and proved substantial damage caused to him because of infringement of his right? b)Whether the Plaintiff has proved his Right of presciption of Easementry Right over the schedule mentioned property beyond reasonable doubt? c)Whether the dominant owner can get Mandatory Injunction when he has not proved any substantial damage due to the construction of the survient owner? 7.Learned counsel for the Appellants, Mr.J.Nandagopal, has submitted that Respondent / Plaintiff gets light and air through other sources and Plaintiff cannot insist for old amenities of light and air. Drawing attention of court to commissioners report and plan, learned counsel for Appellants submitted that there is a gap between two buildings and Plaintiff gets sufficient light and air through the said gap and therefore the Defendants cannot be injuncted from putting up any further construction. 8.Laying emphasis upon the engineers report, the learned counsel for the Respondent Mr.M.Kumaraswami, had submitted that if a wall is further raised, 80% of the Plaintiffs light and air would be affected. The learned counsel further submitted that upon appreciation of oral and documentary evidence courts below recorded concurrent findings that Plaintiff is entitled to easementry right of light and air and the same cannot be interfered with. The learned counsel further submitted that upon appreciation of oral and documentary evidence courts below recorded concurrent findings that Plaintiff is entitled to easementry right of light and air and the same cannot be interfered with. 9.When the Plaintiff seeks for declaration of his easementry right of light and air, it was incumbent upon the Plaintiff to plead and prove that previous owners of the plot had not obstructed light and air prior to selling of the plot to the Defendants. The Plaintiff must plead and prove that his enjoyment of light and air was peaceable without any interruption there on. 10.Plaintiff has purchased suit property under Ex.A1 sale deed dated 07.05.1973. Plaintiff has obtained Ex.A2-Plan permit from MMDA and EX.A3-Permit from Corporation of Chennai, in the year 1977 and Plaintiff has put up building comprising of ground, first and second floor in the property purchased under Ex.A1. Plaintiff has provided six ventilators on the first floor and three ventilators on the second floor of his eastern wall. In his evidence, PW1 has stated that from 1977 onwards he has been enjoying free flow of light and air uninterruptedly and that predecessor-in-title of Defendants never obstructed light and air to the Plaintiff. The Commissioner who visited the spot has noticed that flow of light and air was affected. The engineer who has accompanied the Commissioner has estimated the age of the building:- Ground Floor : 45 years; First Floor : 25 years; Second Floor : 15 years. The engineer has observed that because of wall constructed by the Defendants, 80% of light and air is affected to the Plaintiffs building. The engineer has further observed that only through the two windows by reason of the provision of splay in the Plaintiffs Eastern wall, the first floor receives some air. Exs.C1 and C2 and the engineers report would clearly indicate Plaintiff has free flow of light and air only from the eastern side. 11.Plaintiff has been getting free flow of light and air openly and uninterruptedly. The Defendants who purchased the property under Ex.B2 sale deed dated 24.01.1994, also did not object. Based on the evidence courts below recorded concurrent findings that the Plaintiff has perfected his right for free flow of light and air through the windows and ventilators on the eastern wall of his house for more than statutory period as per Section 15 of the Easements Act. Based on the evidence courts below recorded concurrent findings that the Plaintiff has perfected his right for free flow of light and air through the windows and ventilators on the eastern wall of his house for more than statutory period as per Section 15 of the Easements Act. 12.Contention of Defendants is that Plaintiff has no easementary right of light and air and that the house is a street house and no open space need be left out. The contention of the Defendants that no open space need be left out is unsupported by any building rules and therefore such contention was rightly negatived by the courts below. 13.Defendants himself has obtained sanction for building plan issued by CMDA Ex.B3 and the same was received as additional evidence by this court in M.P.No.1/2007. Though Defendants claim to have obtained sanction for the building plan, having regard to the engineers report, it cannot be said that the Defendants can put up construction obstructing Plaintiffs light and air. 14.Defence plea is that there is space in between the two houses through which Plaintiff can get light and air. Placing reliance upon 1975 (I) M.L.J. 401 V.N.Chandravadivelu Chettiar vs. V.Varadappa Chetty, the learned counsel for Appellant contended that Plaintiff receives sufficient light and air from other sources and therefore Defendants cannot be injuncted from putting up construction. Considering the scope of Section 33 and easmentary acts the Division Bench has held as under: "..... 10.According to the section, a suit for compensation may be instituted for the disturbance of the easement provided that the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff. Therefore, the causing of substantial damage is necessary before a suit for compensation could be maintained. What is substantial damage is explained in Explanations I to III. Explanation I provides that when an act is likely to injure the plaintiff by affecting the evidence of the easement or by materially diminishing the value of the dominant heritage, the damage is substantial." 15.As pointed out earlier in his report the engineer has noticed that Plaintiffs building gets light and air only from the eastern side and that if the construction is put up free flow of light and air to Plaintiffs house would be affected. Defence plea that there is space in between the two houses from which Plaintiff can get light and air was negatived by courts below and the same cannot be interfered with. 16. Air is important as light to life. Explanation III to Section 33 of the Easements Act provides thus:- Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the Plaintiff, though it is not injurious to his health. Any action of any neighbour resulting in obstruction in free flow of air, light and water, causing pollution, material injury or even obstructing right of privacy shall give right to the aggrieved to approach court to such specific relief. 17.By analysis of oral and documentary evidence courts below held that Plaintiff has been getting light and air from the eastern side for a long period and in a peaceable manner. In view of the long enjoyment the same is presumed to be right. Upon appreciation of evidence when the courts below arrived at the right conclusion and the same cannot be interfered with. Concurrent findings of fact cannot be interfered unless shown to be perverse. No substantial question of law is involved in this Second Appeal and this Second Appeal is bound to fail. 18.In the result, the judgment of the Lower Appellate court in A.S.No.546 of 2004 on the file of Additional District Session, III Fast track court, Chennai (arising out of O.S.No.231/2001 on the file of I Assistant city civil Judge, Chennai.) is confirmed and the Second Appeal is dismissed. No costs.