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2013 DIGILAW 518 (AP)

Pushpa v. L. C. Farnandez (Died) Per L. Rs.

2013-07-05

SAMUDRALA GOVINDARAJULU

body2013
Judgment : Samudrala Govindarajulu, J. 1. The second defendant-cum-counter claimant who was unsuccessful in both the Courts below, is the appellant herein. The 1st respondent/plaintiff filed the suit in the trial Court for mandatory injunction directing the 2nd defendant to remove unauthorized construction on western side of the suit property (ie) room in ground floor, sajja of the 1st1stground floor, centring of the sajja of the floor and to direct the defendant/Municipal corporation of Hyderabad to remove the same to bring the construction in accordance with the sanctioned plan, in the event of 2nd defendant not removing the unauthorized construction and also for consequential injunction restraining the 2nd defendant from carrying on construction covering open space on the western side of the suit property, which may affect easementary rights of the plaintiff for free air and light through the windows to the plaintiff’s house. The plaintiff is owner of house, which is located to the east of the 1st defendant’s house. It is contention of the plaintiff that by virtue of the impugned constructions undertaken by the 1st defendant contrary to the municipal sanctioned plan, the plaintiff is suffering for free passage of air and light through her western windows into her house. The 1st defendant/Municipal corporation contended that the 2nd defendant made constructions contrary to the sanctioned plan and that it is taking steps against the 2nd defendant for following the sanctioned plan in making the construction. The 2nd defendant/appellant contended inter-alia that there are no deviations in construction from the municipal sanctioned plan and that constructions have been made by the 2nd defendant are not causing any hinderance for passage of air and light to the plaintiff’s house as the plaintiff has already closed the western windows of her house. As a counter claim, the 2nd defendant contended that balcony in the 1st floor of the plaintiff’s house is protruding towards 2nd defendant’s property and that at the time of purchase of the site by the 2nd defendant, the plaintiff agreed and undertook to remove 1st floor balcony and that therefore mandatory injunction is liable to be issued against the plaintiff for removal of the said balcony. After trial, the trial Court decreed the suit and dismissed the counter claim. On two appeals filed by the 2nd defendant, the lower appellate Court dismissed both the appeals. Therefore, the 2nd defendant approached this Court with these two second appeals. After trial, the trial Court decreed the suit and dismissed the counter claim. On two appeals filed by the 2nd defendant, the lower appellate Court dismissed both the appeals. Therefore, the 2nd defendant approached this Court with these two second appeals. Second Appeal No.985 of 1999 relates to decree of mandatory injunction etc., passed in the suit and confirmed by the lower appellate Court. Second Appeal No.986 of 1999 relates to dismissal of counter claim of the 2nd defendant by both the Courts below. Second Appeal No.985 of 1999 was admitted by the then Learned Judge of this Court after identifying ground Nos.1 to 4 of memorandum of grounds of second Appeal as substantial questions of law. They are as follows:- 1. Whether the suit for mandatory injunction for demolition of the construction made contrary to the sanctioned plan of the Municipal Corporation of Hyderabad is maintainable by a neighbor when the said construction does not affect the easementary right of the plaintiff. 2. Whether the plaintiff who comes to the Court with a specific case that the construction being made by the neighbor is affecting his easementary right of free air and light into his premises, is entitled to a decree for mandatory injunction for demolition of the structure, in the absence of establishing his case regarding easementary right. 3. Whether any deviations made contrary to the sanctioned plan of the Municipal Corporation of Hyderabad and the constructed portion is liable to be demolished when the same does not affect the easementary right of a neighbour and does not affect public interest or cause any public injury. 4. Whether the judgment of the appellate Court could be sustained for not framing the appropriate points for consideration as contemplated under Order 41 Rules 31 of CPC and as laid down by this Hon’ble Court in the decisions reported in 1990 (2) ALT 256 and 1994 (4) ALT 41. 4. Whether the judgment of the appellate Court could be sustained for not framing the appropriate points for consideration as contemplated under Order 41 Rules 31 of CPC and as laid down by this Hon’ble Court in the decisions reported in 1990 (2) ALT 256 and 1994 (4) ALT 41. Second Appeal No. 986 of 1999 was admitted by the then learned judge of this Court after identifying the ground no.1 of the memorandum of grounds of second Appeal as substantial question of law which is as follows:- “Whether the counter claim of the defendant could be dismissed in the absence of any contest by the plaintiff by filing written statement and in the light of the admission of the plaintiffs about projection of his balcony into the site of the defendant in the light of evidence of DW-2 which have not been considered.” Both the Courts below on examination of evidence on record found on facts that the 2nd defendant made certain violations in construction of her house from the municipal sanctioned plan. The appellants’ counsel in these second appeals submitted that he is not questioning the said finding of the Courts below, as it is a question of fact. It is contended that inspite of said finding of the Courts below about deviations from the sanctioned plan, the plaintiff is not entitled to maintain a suit for mandatory injunction by way of demolition of constructions made deviating sanctioned plan and that it is for the 1st defendant to take statutory action against the alleged violator of sanctioned plan. When the 1st defendant served notice to the 2nd defendant under the Hyderabad Municipal Corporation Act, 1955, the 2nd defendant filed suit and obtained stay orders. The appellants, counsel stated across the bar that subsequently the Municipal Corporation regularized the deviations after receiving necessary penalty or fees. Sheet anchor of the appellants’ contention is Kamalamma Vs. Sri Rangam Subba Rao 1973 (2) ALT 8 of Division Bench of this Court, wherein it was laid down: “While considering the question whether, under the Municipal law, an adjacent owner of a building can bring an action against the other individuals, the intention of the statute has to be taken into consideration. Sri Rangam Subba Rao 1973 (2) ALT 8 of Division Bench of this Court, wherein it was laid down: “While considering the question whether, under the Municipal law, an adjacent owner of a building can bring an action against the other individuals, the intention of the statute has to be taken into consideration. We are unable to say, from Chapter XII, which deals with building regulations, that the Legislature intended to vest in a private individual also the right to have the building of a neighbour pulled down merely for the reason that there is some deviation from the sanctioned plan in the construction of the building. It is to be borne in mind that the deviation from the sanctioned plan need not necessarily be one referred to in Clause (e) of Section 444. It could be any other deviation, for instance, a person who obtains a sanction of a building proposing windows and doors of particular dimensions or size or, for that matter, even rooms, may violate those conditions and decrease or increase the dimensions. Whatever deviation there may be in the construction of the building, it is a matter for the Municipality to look into and see how far that violation or breach offends the public as a whole in matters of sanitation, health and other amenities. The fact that free passage of light and air to the adjacent building is diminished by way of another building coming up by its side will not necessarily lead to the interference that it is a matter affecting the general public. Chapter II of the Act nowhere gives an indication that an adjacent owner of a building has an implied right of action against his neighbour, who has constructed a building in contravention of the provisions of the Act and the rules made thereunder. Chapter II of the Act nowhere gives an indication that an adjacent owner of a building has an implied right of action against his neighbour, who has constructed a building in contravention of the provisions of the Act and the rules made thereunder. It is for the owner, if heels that there is any damage or injury to his amenities either in the matter of free flow of air and light or sanitation for the reason that the plan of the proposed building of the neighbour are not in accordance with the Municipal Laws, to move the Court and obtain a writ of mandamus against the Corporation to observe the Municipal laws in the matter of sanctioning building plans for construction.” The lower Appellate Court granted mandatory injunction for removal of deviated constructions on the ground that the said deviations cause obstructions of light and air into the plaintiff’s house from western side. Very obstruction of passage from the sanctioned plan, is no ground for a neighbour to seek mandatory injunction for removal of the constructions made in deviation from the sanctioned plan as laid down above by the Division Bench of this Court. The lower appellate Court even after noting the above decision of Division Bench of this Court, did not appreciate the said decision after going through the above relevant finding rendered by the Division Bench. Thus Division Bench decision of this Court is an authority for the proposition that a private party cannot maintain a suit for mandatory injunction for removal of the constructions made by a neighbour in violation of and in deviation from the sanctioned municipal plan. In that view of the matter, the decree granted by the Courts below relating to mandatory injunction etc., cannot stand in the eye of law. I find substantial question of law in Second Appeal No.985 of 1999 in favour of the appellant and against the respondents. The second ground on which the plaintiff sought for removal of certain constructions made by the plaintiff by way of room in the ground floor and sajja etc., in ground and 1st floor, is that they are causing obstruction to the plaintiff’s easementary right of getting free air and light to her house through her western windows. The second ground on which the plaintiff sought for removal of certain constructions made by the plaintiff by way of room in the ground floor and sajja etc., in ground and 1st floor, is that they are causing obstruction to the plaintiff’s easementary right of getting free air and light to her house through her western windows. The lower Appellate Court came to the conclusion that the deviated constructions do obstruct free passage of air and light to the plaintiff’s house through her western windows. It is contended by the appellants counsel that very obstruction for free passage of air and light to the plaintiff’s house or diminution of air and light to the plaintiff’s house because of the constructions made by the 2nd defendant by itself does not clothe the plaintiff with a right to obtain mandatory injunction, in the absence of pleading and proof as contemplated under Explanation-II and III of Section 33 to the Indian Easements Act, 1882 to the effect that the said obstruction of disturbance to free passage of light and air, the plaintiff suffered substantial damage or the plaintiff suffered material physical comfort. The appellants’ counsel placed reliance on Sukhadev Rathi Vs. Jupudi Rukinamma 1975 ALT 429 of this Court, wherein it is reiterated to the effect that if the passage of air and light is obstructed as a result of putting up certain structures by the defendants, that does not by itself give rise to a cause of auction to the plaintiff and that the plaintiff should go further and prove that the act of defendants result in substantial damage to him in the matter of enjoying his premisis. It is further reiterated therein that from the language employed in Sec.33 and Explanations II and III thereto it is abundantly clear that no damage in the case of an easement right to free passage of light and air is actionable unless it is substantial and has the effect of materially interfering with physical comfort of the plaintiff thought not injurious to health. It is contended by the appellants’ counsel that there is no pleading that interference or disturbance for free passage of air and light due to constructions made by the 2nd defendant is causing substantial damage to the plaintiff or his interfering materially with physical comfort of the plaintiff. It is contended by the appellants’ counsel that there is no pleading that interference or disturbance for free passage of air and light due to constructions made by the 2nd defendant is causing substantial damage to the plaintiff or his interfering materially with physical comfort of the plaintiff. In the absence of any pleading much less proof of substantial damage and material interference with physical comfort, the Courts below could not have granted mandatory injunction for removal of the constructions on the ground of tampering with free passage of light and air to the plaintiff’s house. The lower Appellate Court again through referred to the above decision of this Court, failed to apply ratio of the said decision and failed to apply principle contained in section 33 and Explanations II and III of he Easements Act to facts of this case. It vitiates the judgments rendered by the Courts below to that extent. Insofar as the counter claim is concerned, no doubt, the plaintiff did not file any written statement/rejoinder for the counter claim made by the 2nd defendant in her written statement, on which she also paid necessary court fees by valuing the said counter claim. Though non-filing of written statement/rejoinder for the counter claim by the plaintiff is an initial circumstance which goes against the plaintiff’s opposition of the counter claim. In my opinion, the said non-filing of written statement/rejoinder is not conclusive against the plaintiff insofar as the counter claim is concerned. Simply because the defendant becomes exparte or fails to file written statement in a suit, it cannot be said that the plaintiff has got a vested right to have a decree as prayed for in his favour. Nothing prevents a Court from negativing claim or counter claim in case the party failed to prove the same. In this case, the 2nd defendant pleads an agreement said to have been entered into between the plaintiff and the 2nd defendant at the time of purchase of the site by the 2nd defendant. There is no documentary proof evidencing the said agreement. There are no witnesses for the said agreement. There was no occasion for the plaintiff to enter into any consideration or supported by any counter promise on the part of the 2nd defendant. There is no documentary proof evidencing the said agreement. There are no witnesses for the said agreement. There was no occasion for the plaintiff to enter into any consideration or supported by any counter promise on the part of the 2nd defendant. In the absence of evidence and in the absence of proof of legality of the alleged agreement for removal of 1st floor balcony by the plaintiff, in my opinion, the Court below rightly came to the conclusion that the 2nd defendant is not entitled for the relief claimed in the counter claim. The appellants’ counsel seeks to point out that the plaintiff as Pw.1 admitted in his cross-examination that his 1st floor balcony is protruding towards the 2nd defendant’s site. He has not admitted that the 1st floor balcony is protruding into the 2nd defendant’s site and a part of it is lying over and above the 2nd defendant’s site. Therefore, in these circumstances, I have no hesitation to hold substantial question of law in Second Appeal No. 986 of 1999 against the appellant and in favour of the respondents. S.A.No.985 of 1999 In the result, the Second Appeal is allowed setting aside the decree passed by the Courts below and dismissing the suit. No costs. S.A.No.986 of 1999 In the result, the Second Appeal is dismissed. No costs.