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2018 DIGILAW 782 (HP)

Raghu Nath v. Shiv Ram

2018-05-01

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —The appellant is the defendant, who having lost before both the learned courts below, has filed the instant appeal. The parties shall be referred to as the plaintiffs and defendant. 2. The brief facts giving rise to the present appeal are that the plaintiffs filed a suit for permanent prohibitory and mandatory injunction against the defendant on the allegations that the house of plaintiff No.1 was existing over the land comprised in khewat No.542, Khatauni No. 885 bearing Khasra Nos.955, 956 and 963 kita 3, measuring 28.485 sq.mts for the last forty years, whereas house of plaintiff No.2 was existing over the land comprised in khewat No.543, Khatauni No.886, bearing khasra Nos. 952 and 953 kita 2 measuring 67.985 sq.mts, in Mauza Samkhetar, Mandi Town, Tehsil Sadar, District Mandi, H.P. It was averred that the plaintiffs were residing with their family in the said houses and adjacent to their houses, there was a land comprised in khewat No. 25, Khatauni No. 38, bearing khasra Nos. 954, 965, 966, 967, 968, 969 and 970 kita-7, measuring 268.80 sq. mts. and the windows of the houses of the plaintiffs were existing towards the said land owned by the defendant and others. It was further averred that the plaintiffs had been in peaceful enjoyment of right of sunlight and air to their houses from the suit land for the last more than 40 years uninterruptedly as an easementary right. However, defendant since second week of December, 2009 forcibly started raising construction of his house/super structure, without obtaining requisite permission from the Municipal Council and Town and Country Planning Department, contiguous to the windows of the houses of the plaintiffs in such a manner that it would permanently block the beneficial and permanent use of sunlight and air to their houses. Even though the defendant was requested to raise any construction, but he turned deaf ear to the request so made. Hence, the suit. 3. The defendant contested the suit by filing written statement taking therein preliminary objections regarding maintainability, estoppel, non-joinder and mis-joinder of necessary parties, evaluation and jurisdiction. Even though the defendant was requested to raise any construction, but he turned deaf ear to the request so made. Hence, the suit. 3. The defendant contested the suit by filing written statement taking therein preliminary objections regarding maintainability, estoppel, non-joinder and mis-joinder of necessary parties, evaluation and jurisdiction. On merits, he alleged that his house was already existing over the suit land and no new construction was in fact being carried out and even the construction so carried out was much prior to the filing of the suit, therefore, there is no question of peaceful enjoyment of sunlight and air to the houses of the plaintiffs being blocked in any manner. It was further averred that he had only repaired the old structure by uprooting the roof and laying slab which had been done more than five years back from the date of filing of the suit and as such there was no question of getting approved sanction map from Municipal Committee and Town and Country Planning Department. Accordingly, he prayed for dismissal of the suit. 4. From the pleadings of the parties, the learned trial court on 28.4.2010 framed the following issues:- 1. Whether the plaintiffs are entitled for decree of permanent prohibitory and mandatory injunction, as prayed for OPP 2. Whether the suit is not maintainable OPD 3. Whether the plaintiffs are estopped by their own act and conduct to file the present suit, as alleged OPD 4. Whether the plaintiffs have no locus standi to file the present suit, as alleged OPD 5. Whether the suit is bad for non-joinder and misjoinder of necessary parties, as alleged OPD 6. Relief. 5. After recording the evidence and evaluating the same, the suit of the plaintiff was decreed by the learned trial court vide impugned judgment and decree dated 17.2.2016 by restraining the defendant from causing any sort of unlawful interference in the peaceful enjoyment of the right of light, air and privacy to the house of the plaintiffs and the stair case raised by the defendant over the suit land was ordered to be demolished and removed; and the suit land was ordered to be restored to its original position contiguous to the windows of the house of the plaintiffs. 6. 6. Aggrieved by the judgment and decree passed by the learned trial court, the defendant filed an appeal before the learned District Judge, Mandi, who dismissed the same vide impugned judgment and decree dated 24.5.2017. 7. It is against both the impugned judgments and decrees rendered by the learned courts below that the defendant has filed the instant regular second appeal. 8. It is vehemently contended by Mr. H.S. Rangra, learned counsel for the defendant, that construction raised by the defendant has not impaired or even infringed the right of the plaintiffs regarding enjoyment of right of sunlight, air and privacy in any way, therefore, the impugned judgments and decrees passed by the learned courts below are not sustainable. He would further argue that the learned courts below have given unnecessary and undue importance to the report of the Local Commissioner, even despite the fact that he had not appeared in the witness-box. On the other hand, Mr. G.R.Palsra, learned counsel for the plaintiffs would support the impugned judgments and decrees passed in favour of the plaintiffs on the ground that the same have been passed in accordance with law and deserve to be upheld by this Court. 9. I have heard the learned counsel for the parties and have also gone through the material placed on record carefully. 10. At the outset, it may be noticed that the construction raised by the defendant has been found to be illegal as the defendant had carried out the construction without any sanction from the competent authority. This fact has been duly proved by Suresh Kumar, Supervisor, Municipal Committee, Mandi, who appeared as PW1 and stated that defendant had raised second storey of his house without permission from the Municipal Committee. He had prepared the report, Ext.PW1/A, which, in turn, was submitted by him to the office, pursuant to which notices under Section 39 of H.P. Town and Country Planning Act and under Section 211 of H.P. Municipal Act were issued to the defendant vide Ext.PW1/B and Ext.PW1/C. He further stated that on 18.12.2009, the defendant had raised stair case and to that effect, he had given his report, Ext.PW1/D to the Junior Engineer. Thereafter, the Extension Officer issued notice, Ext.PW1/E under Section 184 of the Municipal Act. Despite this, defendant had not removed the unauthorized construction. Even though this witness was cross-examined at length but nothing material could be elicited therefrom. Thereafter, the Extension Officer issued notice, Ext.PW1/E under Section 184 of the Municipal Act. Despite this, defendant had not removed the unauthorized construction. Even though this witness was cross-examined at length but nothing material could be elicited therefrom. He in fact specifically stated that the ground floor of the defendant was old, but he had raised new construction on the first floor. He further went on to state that when he visited the spot on 6.12.2009 there was no stair case, but later on when he again visited the spot on 18.12.2009 found the stair case to have been constructed. 11. To the same effect is the statements of other official witnesses of Municipal Committee i.e. PW2 Lalit Katoch, Junior Engineer and PW3 Urwashi Bala, Extension Officer, Municipal Committee, Mandi. 12. Now, once it is proved that the construction being raised by the defendant is unauthorized, obviously then no fault can be found with the impugned judgments and decrees passed by the learned courts below whereby the defendant was restrained from causing any sort of unlawful interference in the peaceful enjoyment of the right of light, air and privacy to the house of the plaintiffs and the stair case raised by the defendant over the suit land was ordered to be demolished and removed; and maintenance of status quo ante was directed. 13. Apart from that, even the defendant while appearing as DW1 has categorically admitted in his crossexamination that he had raised alleged construction without getting the map sanctioned from the Town and Country Planning Department. 14. As regards the exception being taken to the report of the Local Commissioner, suffice it to say, that the Local Commissioner had been appointed by the court, who visited the spot and prepared the report, wherein it was found that the defendant had obstructed the right of light, air and privacy to the house of the plaintiffs. It was found that the plaintiffs were enjoying the right of light and air towards the house of the defendant uninterruptedly for more than last twenty years and, thus, acquired right of an easement, which could not be permitted to be taken away by any person(s) , i.e. defendant, by raising construction, which would seriously affect those rights. 15. It was found that the plaintiffs were enjoying the right of light and air towards the house of the defendant uninterruptedly for more than last twenty years and, thus, acquired right of an easement, which could not be permitted to be taken away by any person(s) , i.e. defendant, by raising construction, which would seriously affect those rights. 15. Apart from above, it would be noticed that right of easement of light and air has in fact not been seriously disputed by the defendant in the appeal filed before the learned first appellate court. 16. As regards the findings recorded by the learned courts below qua enjoyment of easementary right by the plaintiffs and the alleged construction raised by the defendant being contrary to law hampering the right of light and air to the house of the plaintiffs, the same appear to be findings of fact, which cannot be interfered by this Court while exercising the powers under Section 100 CPC. 17. No question of law much less substantial question of law arises for consideration in this appeal. 18. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.