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2013 DIGILAW 241 (UTT)

ASHA DEVI @ ANJU KARKI v. GOVIND SINGH

2013-05-06

Prafulla C.Pant

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. This Second Appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 18.07.2012, passed by Additional District Judge, Almora, in Civil Appeal No. 10 of 2006, whereby said court has affirmed the judgment and decree passed by the trial court (Civil Judge (Junior Division), Almora), in Suit No. 14 of 1998. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case giving rise to this appeal are that plaintiff/respondent No.1 Govind Singh filed a suit No. 14 of 1998, initially for injunction against the defendants claiming easementary right of access and use of light and air over the property of the defendants. It is pleaded in the plaint that the plaintiff purchased a land measuring 9 Mutthi of Plot No. 2781 from one Nath Singh Jeena in Mohalla Khatyadi of Almora, through sale deed dated 21.05.1973, and constructed his house in the year 1974. It is further pleaded that adjoining to said land, plot No. 2779 belonging to defendant No.1 Asha Devi is situated, in which she has started construction of her house, which she wants to make a double storied building. It is alleged by the plaintiff that he was enjoying use of air and light coming through the plot of the defendant No.1 and he has matured the right of easement by way of prescription on completion of such use for a period of more than twenty years (precisely twenty four years). It is further alleged by him that since the defendant no.1 has failed to stop construction, on his request, the suit is instituted (during pendency of the suit amendment was made in the plaint and it was pleaded that first floor has also been constructed by defendant No.1 during the pendency of suit and as such, the same (first floor) is liable to be demolished). It is also pertinent to mention here that similarly Suit No. 15 of 1998, was filed by the plaintiff against one Debuli Devi (since died) who was constructing her house over the plot No. 2778. It is also pertinent to mention here that similarly Suit No. 15 of 1998, was filed by the plaintiff against one Debuli Devi (since died) who was constructing her house over the plot No. 2778. Both the suits were consolidated and tried together, and the trial court partly decreed the suit, vide its judgment and order dated 02.02.2006, directing that defendant No.1 Asha Devi, to remove the construction raised by her on the first floor up to the width of 3 feet from the varandah of the plaintiff. (Similar direction was issued in the connected Suit No. 15 of 1998). 4. It appears that defendant No.1 Asha Devi filed Civil Appeal No. 10 of 2006, against the judgment and decree passed by the trial court, to demolish the part of construction on the first floor, up to the width of 3feet from the varandah of plaintiff Similarly Civil Appeal No. 14 of 2006, filed by one of the legal heirs of Debuli Devi. Both the appeals were dismissed, vide impugned judgment and decree dated 18.07.2012, passed by Additional District Judge, Almora, against which, this appeal is filed by defendant No.1 Asha Devi, in Suit No. 14 of 1998. (No second appeal appears to have been filed in the connected suit/appeal). 5. The case of the defendant No.1/appellant Asha Devi is that she had already constructed the ground floor at the time of institution of the suit. She further pleaded that she had already left 5 feet distance between the house of the plaintiff and her house. She also pleaded in the written statement that the plaintiff’s house is not 24 years old, rather it is a recent construction. She did not conceal the fact that she was going to construct first floor of her house. 6. On the basis of the pleadings of the parties, the trial court framed following issues:- 1) Whether due to construction of house by the defendant plaintiff’s pathway, drain, use of air and light would get obstructed, if so its effect? 2) Whether the plaintiff has other alternative sources of air, light and pathway? And whether there is five feet wide space left between the two houses, if so to its effect? 3) To what was relief if any, plaintiff is entitled. 4) Whether Court fee paid is insufficient as alleged in Para No.2 of the additional written statement? 2) Whether the plaintiff has other alternative sources of air, light and pathway? And whether there is five feet wide space left between the two houses, if so to its effect? 3) To what was relief if any, plaintiff is entitled. 4) Whether Court fee paid is insufficient as alleged in Para No.2 of the additional written statement? After recording evidence and hearing the parties, the trial court found that the plaintiff has matured his rights of easement and granted the relief of demolition in respect of part of construction raised by the defendant No.1 on the first floor. 7. It appears that in Civil Appeal No. 14 of 1998, filed by the defendant No.1 in which two more issues were framed vide order dated 17.08.2007, and the matter was remanded to the trial court for findings thereon. Said two additional issues read as under :- A. While raising of the construction of first floor defendant caused substantial damage to the plaintiff 5 within ambit of Section 33 of Indian Easement Act, 1882. B. Whether compensation as provided under Section 33 of Indian Easement Act, 1882, will meet the ends of justice. 8. The trial court vide its order dated 03.11.2007, decided both these issues against the plaintiff and in favour of the defendants and submitted said findings to the lower appellate court. The lower appellate court, after hearing the parties, vide impugned judgment and decree dated 18.07.2012, dismissed the appeal. Hence this Second Appeal. 9. This Second Appeal was admitted by this Court on following substantial questions of law. 1) Whether the court below has wrongly appreciated the period of limitation inherent in Section 15 of Indian Easement Act, 1882, while appreciating and giving findings on the right of the plaintiff. 10. Before further discussion, this Court thinks it just and proper to mention the relevant provision of law applicable to this case. 1) Whether the court below has wrongly appreciated the period of limitation inherent in Section 15 of Indian Easement Act, 1882, while appreciating and giving findings on the right of the plaintiff. 10. Before further discussion, this Court thinks it just and proper to mention the relevant provision of law applicable to this case. Section 15 of Indian Easement Act, 1882, reads as under:- Acquisition by prescription –Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person’s land or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease. Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made. Explanation III: Suspensions of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation III: Suspensions of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV: In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “thirty years” were substituted. 11. On behalf of the defendant/appellant attention of this Court is drawn to Para 5 of Section15, which provides that each of the periods of twenty years shall be taken to be the period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. It is argued on behalf of the appellant that from the report of the Commissioner, Shri Manoj Kumar Joshi, Advocate, (Paper No. 79C/2) it is clear that on 29.01.2002, when said Commissioner inspected the spot, it was found that the house of the defendant No.1 was already double storied by then. Referring to said document, it is pointed out that the plaintiff sought amendment in the suit only on 02.07.2004 (application 59A) and by then more than two years period had already lapsed. On this ground, it is contended that the inherent period of limitation provided in Para 5 of Section 15, from the date when the claim of easement right stood contested was not adhered by the plaintiff. As such, the courts below have erred in law in decreeing the suit for demolishing the part of the construction of the first floor of the defendant No.1. In support of the contention made on behalf of the defendant No.1/appellant case of Mt. Chanda Devi Vs. Mt. Kripa and others AIR (34) 1947 Allahabad 374 is relied upon. 12. I have considered the submission made on behalf of the appellant and also went through the relevant provision of law and case law referred as above. No doubt, from Para 5 of Section 15 of Indian Easements Act, 1882, it flows that even if the period of more than twenty years was expired, the plaintiff must institute a suit claiming easement within two years of the challenge/threat/contest given to such right by the defendant (servient owner). No doubt, from Para 5 of Section 15 of Indian Easements Act, 1882, it flows that even if the period of more than twenty years was expired, the plaintiff must institute a suit claiming easement within two years of the challenge/threat/contest given to such right by the defendant (servient owner). But in the present case said provision is of little help to the defendant No.1/appellant for the reason that the suit had already been instituted by the plaintiff before the construction was raised on the first floor. It is relevant to mention here that expression “institution of the suit” has been used in Para 5 of Section 15 of the Indian Easements Act, 1882. Assuming for a moment that for the purposes of relief of demolition, which was added during the pendency of the suit, the institution be treated from the date, such relief is added, still this Court is of the opinion that considering the fact that the disputed construction over first floor was raised by the defendant No.1/appellant during the pendency of the suit in violation of the temporary injunction granted by the trial court, as such the impugned decree passed by the trial court for removal of only three feet width of construction from the house of the plaintiff does not require interference of this Court. Else, this would amount to giving benefit to the defendant of violating the order of the Court. He cannot be allowed to take benefit of his own wrong. Order dated 27.06.1998, passed by the trial court, after hearing the parties, clearly shows that the defendant No.1 was allowed only to do finishing work on the ground floor and not to raise further construction. In the circumstances, the defendant No.1 had taken risk on getting demolished the part of the construction directed to be demolished by the trial court 13. In Ram Narayan Choubey Vs. Gangadhar Choubey and others AIR 1975 Allahabad 248 it has been held that instead of removing whole construction of defendant only that much part of the construction should be demolished removal of which allows the enjoyment of the easemen of the plaintiff without causing unnecessary harm to the interests of the servient owner. In Ram Narayan Choubey Vs. Gangadhar Choubey and others AIR 1975 Allahabad 248 it has been held that instead of removing whole construction of defendant only that much part of the construction should be demolished removal of which allows the enjoyment of the easemen of the plaintiff without causing unnecessary harm to the interests of the servient owner. In the present case, the trial court has directed the defendant No.1 to remove the construction only up to the width of three feet from the varandah of the plaintiff that too on the first floor only. 14. In the above circumstances, the substantial question of law stands answered with the observation that even if the plaintiff has enjoyed easementary right for more that twenty years, he can maintain a suit by filing the same within two years of the challenge/contest made by the servient owner to the right of the dominant owner. But in the present case, even said provision of law is of little help to the defendant No.1/appellant has the suit was already be instituted for injunction, before the relief of demolition added during the pendency of suit, after the defendant No.1 allegedly raised construction in violation of the interim order of the court. 15. For the reasons as discussed above, this Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. Costs easy.