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2014 DIGILAW 185 (PNJ)

Satish Kumar v. Prem Wati

2014-01-23

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.:- The defendant is in appeal against the judgment and decree of the learned lower Appellate Court by which the judgment and decree of the learned trial Court has been reversed. 2. Learned counsel for the appellant has raised the question of law “as to whether the learned lower Appellate Court has committed an error of law while allowing the suit of the plaintiff by misreading the evidence on record?” 3. The plaintiff filed the suit for permanent injunction in order to restrain the defendant from closing the window and door at points ‘W’ and ‘D’ on the Ist floor of the house shown by letters ABCD. It was alleged that she along with her son Om Parkash has purchased the house in dispute from Ravinder Kumar son fo Rikhi Ram and Ajudhia Parshad son of Late Hari Ram vide registered sale deed dated 23.5.1972. The window and door in question were already in existence in the said house from the last more than 100 years and the plaintiff was enjoying easementary right of light and air through the window and ingress through the door but the defendant illegally raised the projection at point CSRN in front of the window and DNMP in front of the door and had threatened to close the door and window by making construction in front of the house. 4. In the written statement, the defendant denied all the averments alleging that door at point ‘D’ and window at point ‘W’ were not in existence since long as alleged and are built only two or three years ago, therefore, the plaintiff has not acquired any right of easement by prescription. Rather it was alleged that the plaintiff has raised projection towards the North-Southern side of the house of the defendant. On the pleadings of the parties, following issues were framed by the trial Court: - “1. Whether the suit is bade for nonjoinder or necessary parties? OPD 2. Whether the plaintiff is entitled to the injunction prayed for? OPP 3. Relief.” 5. Both the parties led their respective oral as well as documentary evidence. 6. The learned trial Court dismissed the suit of the plaintiff observing that there is a street between the house of the plaintiff and the defendant. OPD 2. Whether the plaintiff is entitled to the injunction prayed for? OPP 3. Relief.” 5. Both the parties led their respective oral as well as documentary evidence. 6. The learned trial Court dismissed the suit of the plaintiff observing that there is a street between the house of the plaintiff and the defendant. It was observed that as per Section 4 of the Easement Act, 1982 [for short ‘the Act’], there must be a dominant and servient tenement and the easement must accommodate the dominant tenement. It was observed that the beneficial enjoyment is called dominant heritage and the land upon which liability is imposed is called servient heritage. It was observed that there can be no easement without dominant heritage and servient tenement and easement must always be appurtenant to be dominant tenement. On this analogy, the learned trial Court found that since a street intervenes the house of the plaintiff and the defendant and the door and window opens in the street which is the property of the Municipal Committee, therefore, defendant not being owner of the street, element of the dominant heritage and servient heritage are totally missing and in the absence of easementary right the defendant cannot be restrained. 7. However, the judgment and decree of the learned trial Court was set aside by the Appellate Court on the ground that the door and window are on the Ist floor of the house of the plaintiff whose grievance is that defendant should not raise the construction in such a manner that the door and window is closed. It was rather observed that all the witnesses from both the sides have stated in clear terms as well as in the pleadings that the door and window opened in the public street and not on the property i.e. house of the defendant. Therefore, provisions of Indian Easement Act are not attracted. The learned lower appellate Court had though observed that the suit of the plaintiff does not fall under the provision of the Act but it opined that since the door and window opened towards the public street which intervenes the property of the parties, the plaintiff has a legal right to enjoy the light and air through the same and was within her right to claim the relief of injunction. 8. 8. Learned counsel for the appellant has submitted that the suit filed by the plaintiff was based on the easementary rights but the learned lower Appellate Court, while observing that the Act would not be applicable, granted injunction to the plaintiff by misreading the evidence on record. It is further submitted that once there is a street in between the house of the plaintiff and defendant which does not belong to either of the parties, no injunction can be granted against the defendant restraining him from raising any construction. 9. On the other hand, learned counsel for the plaintiff/respondent has submitted that because of the construction of the projection by the defendant, his door and window would be closed. For that a finding of fact has been recorded by the learned Appellate Court which does not deserve to be interfered with. 10. I have heard learned counsel for the parties and perused the record. 11. The learned Trial Court had found that if it is a case of easement as projected by the plaintiff, then the street being in between both the houses, belonging to Municipal Committee, Batala would not allow the plaintiff to claim the right of easement and the suit was dismissed. The Appellate Court though has observed that right of easement is not available to the plaintiff but still observed that since door and window are opening in the public street which intervenes between the property of both the parties, the plaintiff would have a legal right to enjoy the light and air through the same and would be entitled to claim injunction. Once, it is a categoric finding of both the Courts below, much less the lower Appellate Court itself, that there is a street between the house of the plaintiff and defendant, the defendant cannot be restrained from raising any construction, in accordance with law on his property because the same is not going to block the door and window of the plaintiff, which are admittedly opening in the street. The plaintiff would have ingress and outgress from the door in the street and would also get the air and light through the window. 12. The plaintiff would have ingress and outgress from the door in the street and would also get the air and light through the window. 12. In view of the aforesaid discussion, finding perversity in the appreciation of evidence available on record, the appeal is allowed, judgment and decree of the learned Ist Appellate Court is hereby set aside and the judgment and decree of the learned trial Court is restored.