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2012 DIGILAW 720 (HP)

Ishwar Dass alias Ishar Dass v. Chander Mohan

2012-10-12

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, Judge: 1. This Regular Second Appeal is directed against the judgment and decree, dated 01.04.2002, passed by the learned District Judge, Kullu in Civil Appeal No. 75/2001. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for the sake of convenience), had filed a suit for permanent prohibitory and mandatory injunction against the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience). According to the plaintiffs, they are owners-in-possession of property comprised in Khasra No. 2516/2121/568, Khata Khatauni No. 54 min/74, situated in Phati Dhalpur, Kothi Maharaja, Tehsil and District Kullu, wherein they have constructed a house as per Aks Tatima. Adjacent to this land towards the South, there is Khasra No. 2123/568. According to the plaintiffs, the defendants were making preparations to construct a structure over the suit land comprised under Khasra No. 2123/568 by raising building in such a manner which would touch the Southern wall of the house of plaintiffs without leaving any gap and place, and thereby blocking free air and light to their house. According to them, the defendants have not obtained mandatory permission from the Municipal Committee, Kullu for raising construction. The defendants have earlier made preparations to construct the house in the month of August, 1996 and when a notice was served upon them, the construction was stopped. But, on 07.11.1997, they again started digging foundations for the proposed construction. 3. The suit was contested by the defendants. According to the defendants, the plaintiffs have also filed a suit bearing Civil Suit No. 108/83 against Smt. Ganga Devi, the mother of the defendants and also against defendant No. 2, which was dismissed by the learned Senior Sub Judge, Kullu vide judgment, dated 12.10.1983. According to the defendants, the plaintiffs have no right to get the passage through the suit land nor any air or light has been obstructed by the defendants. According to them, Smt. Ganga Devi, the mother of the defendants, being the owner of suit land, has constructed stonewalls to the extent of about 9 feets height in the year 1980. However, due to paucity of funds, she could not lay slab thereon. Thereafter, the plaintiffs have filed a Civil Suit, which was subsequently dismissed. 4. Learned trial Court framed the issues on 17.03.1998. The suit was dismissed on 31.07.1999. However, due to paucity of funds, she could not lay slab thereon. Thereafter, the plaintiffs have filed a Civil Suit, which was subsequently dismissed. 4. Learned trial Court framed the issues on 17.03.1998. The suit was dismissed on 31.07.1999. The plaintiffs preferred an appeal before the learned District Judge, Kullu. He dismissed the same on 01.04.2002. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 14.11.2002: “Whether the Courts below have ignored the admissions of the defendant-respondents particularly defendant Shri Chander Mohan, DW-1, admitting that the distance between the houses of the parties is 10’ and also the statement of PW-1 proving the existence of the house of the plaintiffs-appellants enjoying the rights of easement for more than 20 years? 6. Plaintiff No. 2 has appeared as PW-1. According to him, his house was situated over Khasra No. 121/568, as shown in Jamabandi, Ex. P-1. According to him, on the Southern part of his house, the defendants have undertaken digging work for the purpose of constructing house. According to him, if the house is constructed by the defendants, it would obstruct light and air. He also deposed that the defendants have not got the plan of the house passed by the Muncipal Committee. According to him, the defendants have earlier started digging over the suit land in the year 1983. He filed a suit against them, but the defendants agreed not to construct the house further. However, in the year 1997, in the month of August, the defendants again started digging the foundations. He also served a notice vide Ex.-P3. 7. DW-1, Sh. Chander Mohan has deposed that the house over the suit land was constructed by their mother in the year 1983 up to one storey. Thereafter, the plaintiff filed a Civil Suit against the defendants, which was dismissed. He further deposed that in case he constructs house over the suit land, the air and light to the house of the plaintiff would not be obstructed. 8. The plaintiffs have not placed on record the copy of the judgment passed by the learned Sub Judge. Hence, the plea of the plaintiffs that the defendants had agreed not to raise construction in the earlier suit, cannot be believed. 8. The plaintiffs have not placed on record the copy of the judgment passed by the learned Sub Judge. Hence, the plea of the plaintiffs that the defendants had agreed not to raise construction in the earlier suit, cannot be believed. The plaintiffs have not made any specific averment, on which portion of the suit land, the defendants were raising construction and from which part of the suit land, the defendants were required to be restrained from raising any construction. The defendants are owners of the suit land. The plaintiffs have also not led any tangible evidence on record to establish that the defendants were digging the foundations to raise construction. The plaintiffs have miserably failed to bring the case within the ambit of Section 15 of the Easement Act, 1882. The plaintiff has not deposed in his statement when they have constructed their house and since when they had been having light to their building from Southern side, adjoining the suit land, openly, peaceably, without interruption and continuously for more than twenty years as of right. Both the Courts below have correctly appreciated the evidence, oral as well as documentary. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.