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Andhra Pradesh High Court
Judges : L.NARASIMHA REDDY
VANGA RAMANUJAYYA S/O.LATE RAMAMURTHY Main ROAD, PALAKOL, W.G.DISTRICT - Appellant
Versus
ATYAM SURYANARAYAN MURTHY S/O.LATE MAMILLAYYA Palakol, W.G.DISTRICT - Respondent
Decided On : 08/22/2006
SECOND APPEAL 632 Of 1994
Civil Law - Easementary right - Suit for injunction to restrain the appellant from making any construction in the first floor - Decreed - Second appeal, aggrieved by decree passed against him trial Court and affirmation of the same by Court of Subordinate Judge in A. S. Respondent and appellant are owners of neighboring buildings – While respondent is said to have purchased his property in the year 1912, the appellant purchased his property in the year 1958 – Respondent filed suit for injunction to restrain the appellant from making any construction in the first floor - Alleged that buildings are adjacent to each other and construction of first floor by appellant would result in prevention of passage of light and air completely – Appellant resisted the suit by stating that the respondent does not have any easementary right against him and that he is entitled to construct on first floor – It was also pleaded that since the buildings are situated in a highly commercial locality, it is not possible to leave any open space at all – Held, It is not in dispute that buildings of appellant and respondent were adjoining each other and hardly there existed any space in between them – Apart from making an effort to lay the factual foundation as to adverse effects, that may result, in case appellant constructs first floor on the entire terrace of ground floor, respondent laid stress upon the requirement and relevant bye-laws also – It was elicited through the appellant herein, who deposed as D. W. 1, that under relevant bye-laws he is under obligation to leave open space of 5 on side of building of the respondent - Trial Court passed a decree, directing that appellant shall not be entitled to construct first floor, except by leaving open space of 5 – In other words appellant was permitted to construct, by leaving 5 open space – It is true that no reference was made to any specific bye-law, but the understanding of the parties, in particular D. W. 1 was clear as to the requirement to leave 5 – Objection raised on behalf of the appellant is that unless the specific provision was referred to or any plea was taken in the plaint, there was no basis for Courts below, to insist on leaving of 5 open space by appellant – To this extent, he may be correct – Extent of open space to be left by owner of property would depend upon requirement under relevant rule, but not on admission or otherwise of the parties – Decree Modified - Directions issued - Second appeal is disposed.
( 1 ) THE defendant in O. S. No. 216 of 1984 on the file of the District munsif, Palakol filed this second appeal, aggrieved by the decree passed against him by the trial Court and affirmation of the same by the Court of the Subordinate Judge, Narsapur in A. S. No. 15 of 1988. The respondent and the appellant are the owners of neighbouring buildings. While the respondent is said to have purchased his property in the year 1912, the appellant purchased his property in the year 1958. The respondent filed the suit for injunction to restrain the appellant from making any construction in the first floor. He alleged that the buildings are adjacent to each other and construction of the first floor by the appellant would result in prevention of passage of light and air completely. Necessary particulars of the openings and ventilators of the properties were furnished.
( 2 ) THE appellant resisted the suit by stating that the respondent does not have any easementary right against him and that he is entitled to construct on the first floor. It was also pleaded that since the buildings are situated in a highly commercial locality, it is not possible to leave any open space at all.
( 3 ) THROUGH its judgment, dated 23/5/1988, the trial Court passed a decree to the effect that the appellant shall not make any construction on the first floor of his premises, except by leaving 5 towards the building of the respodent. Aaarieved therebv. the appellant fifed A. S. No. 15 of 1988 in the Court of the Subordinate Judge, Narsapur. The appeal was dismissed on 7/3/1994.
( 4 ) SRI C. Chandra Sekhar Sastri, the learned counsel for the appellant submits that the respondent did not claim the relief of declaration as to the existence of any easementary rights in him and in that view of the matter, there was no basis for the trial Court in passing the decree, and for the appellate Court, in confirming the same. Placing reliance upon the judgment of the Karnataka High Court in D. RAMANATHA v. S. RAZAACK, AIR 1982 KARNATAKA 314, he submits that an easementary right can come into existence, only when it is declared by a Court and without seeking such a declaration, a mere suit for injunction cannot be maintained. Sri P. Rajasekhar, the learned counsel for the respondent, on the other hand, submits that the effort of his client was only to ensure that the construction is made by the appellant in accordance with relevant bye-laws applicable to the area and even in the absence of any prayer for declaration of easementary rights, such a relief can be claimed. From a perusal of the pleadings before the Court, it is evident that the respondent did not seek the relief of declaration as to the existence of any easementary rights. Though the appellant pleaded that the suit itself is not maintainable, he did not elaborate the same. It was obviously for this reason that no issue was framed by the trial Court, touching on the maintainability of the suit. The only issue framed by the trial Court was as to whether the respondent herein was entitled for the relief of injunction as prayed for.
( 5 ) ON behalf of the respondent, P. Ws. 1 and 2 were examined and exs. AI to A4 were marked. The appellant deposed as D. W1 and he filed ex_b1, the sale deed, under which he purchased the property. The trial court appointed a Commissioner. The warrant, report and plan were marked as Exs. C1 to C3 respectively.
( 6 ) ON behalf of the appellant, a plea, which is purely legal in nature, is raised to the effect that a suit fpr mere injunction on the strength of easementary rights cannot be maintained, unless the corresponding relief of declaration is also prayed for. It hardly needs any emphasis that an easementary right becomes enforceable only when it is declared by a court of law. Unlike other categories of rights, it does not accrue to the persons, independent of any adjudication. The Judgment of the karnataka High Court referred to above, is directly on thi
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