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2012 DIGILAW 1124 (ALL)

Hari Das Agrawal v. Krishna Agrawal

2012-05-10

S.U.KHAN

body2012
JUDGMENT S.U. Khan, J. 1. Heard learned Counsel for the parties. This is defendants' second appeal arising out of O.S. No. 137 of 1971 which was dismissed on 16.8.1976 by Additional Munsif, Hathras (at that time Hathras was in District Aligarh). Against the said decree plaintiff/respondent filed Civil Appeal No. 293 of 1976, which was allowed on 11.2.1978 by II Additional Civil Judge, Aligarh, judgment and decree passed by the Trial Court was set aside and plaintiff's suit for demolition and permanent injunction was decreed. 2. In between the houses of the plaintiff and defendants, a common rasta/gali intervenes of which both the parties are admittedly joint owners. Defendants had constructed on the first floor of their house a balcony projecting over part of common rasta/gali. The lower Appellate Court held that common gali in between houses of different persons can be used only as gali and no party has got any right to encroach upon the same or use the same for any other purpose. 3. This appeal was admitted on 1.8.1978 by the following order: "Issue notice. The substantial questions of law involved in this case are, firstly, whether the finding of the lower Appellate Court that the constructions complained of interfered in the enjoyment of the right of light and air of the plaintiff's house is vitiated by not discussing the evidence on the record; and secondly whether the lower Appellate Court could have decreed the suit for demolition without taking into account the defendants' plea that the plaintiff had himself raised an objection on the passage and was, therefore, not entitled to the relief claimed by him against the defendants." 4. As far as making construction over the ground of the common passage is concerned no co-owner has got right to do that, however in the instant case the defendants had not made any encroachment on the ground of the passage/gali. It was not the case of the plaintiff that the projection of the defendants blocked the window of his house. It was at a distance of 2-2.5 feet from the construction of the plaintiff. The Trial Court held that from the photograph filed by the plaintiff himself it was clear that the show of plaintiff's house might have been affected but the projection of the defendants had not affected light and air of his house. It was at a distance of 2-2.5 feet from the construction of the plaintiff. The Trial Court held that from the photograph filed by the plaintiff himself it was clear that the show of plaintiff's house might have been affected but the projection of the defendants had not affected light and air of his house. The width of the rasta is 7.5 feet and width of the projection is 4 feet. 5. The lower Appellate Court did not record any finding that the defendants' projection adversely affected light and air of the plaintiff's house still the suit was decreed merely on the ground that over a common rasta/gali no one could have any projection. 6. The Trial Court under Issues No. 2 and 8 held that plaintiff had also earlier raised projection over the common rasta to the extent of 4 feet, from east to west and 2-2.5 feet from south to north and this fact was admitted by P.W. 2 in his oral statement. 7. It has been held by this Court in a Full Bench authority of Chhedi Lal and another v. Chhotey Lal AIR 1951 All 199 , that in respect of common land relief of demolition of construction made by one party cannot always be granted and various factors will have to be taken into consideration before doing that. 8. In somewhat similar circumstances in Sachindra Nath Sarkar and others v. Binapani Basu and others AIR 1976 Cal 277 , it was held that in common intervening rasta there was projection by one party, the co-sharer could not seek its demolition. Moreover, if one co-sharer has got his own projection over a common rasta then he cannot seek demolition of the projection of the other co-sharer on the same rasta. Accordingly, the substantial questions of law framed at the time of admission of this appeal are decided in favour of the appellants and second appeal is allowed. Judgment and decree passed by the lower Appellate Court is set aside and judgment and decree passed by the Trial Court dismissing the suit of plaintiff/respondent is restored.