In a suit for injunction alleging illegal construction, the Court must consider all relevant evidence, including the building plan sanctioned by the Municipal Authority, and implead the Municipal Authority as a defendant if necessary for effective adjudication.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This second appeal is the manifestation of displeasure of the defendant/appellant over the judgement and order passed by learned Civil Judge, Senior Division, Raiganj, Uttar Dinajpur on 16th November, 2017 dismissing the Title Appeal No. 15 of 2013 and thereby affirming the judgement and decree passed by learned Civil Judge, Junior Division, Raiganj in Title Suit No. 186 of 2004.

2. Briefly stated, Dilip Kumar Agarwala filed a suit for permanent injunction against his brother Bishnu Dayal Agarwala alleging, inter alia, that ‘Ka’ schedule property is originally owned by Asrafi Devi Agarwala, the grandmother of the plaintiff who during her life time transferred the property in favour of her two sons Ram Swaran Agarwala and Ram Avtar Agarwala by registered deed of gift in the year 1962 and each of the two brothers acquired 22 2/3 decimal of land with proper demarcation. Ram Swaran Agarwala and Ram Avtar Agarwala thereafter, constructed their residential houses over the said properties after getting their names mutated. Ram Swaran Agarwala transferred the ‘Ka’ schedule property in favour of the plaintiff by way of registered deed of gift on 27th September, 1999. The instrument was registered on 6th October, 1999. Since then the plaintiff has been possessing the said ‘Ka’ schedule property by mutating his name and by paying rates and taxes. The adjoining northern portion of the land is owned by his mother Shanti Devi Agarwala, Bishnu Dayal Agarwala and Raghuvir Agarwala (since deceased). After partition Bishnu Dayal Agarwala was allotted adjacent northern side of the ‘Ka’ schedule property which has been depicted as ‘Kha’ schedule property. The defendant started construction over the ‘Kha’ schedule property without leaving the required space from the northern boundary and thus Bishnu Dayal Agarwala violated the Municipal Act and Building Rules. The plaintiff requested the defendant Bishnu Dayal Agarwala not to carry out such illegal work of construction without leaving four feet space from the northern boundary. The defendant is the elder brother of the plaintiff, a teacher by profession, however, constructed his building taking advantage of the absence of the plaintiff, without leaving four feet space from the boundary line of ‘Ka’ schedule property. The plaintiff lodged a complaint to Raiganj Police Station. It is further contended that the illegal construction over ‘Kha’ schedule property is bound to deprive the plaintiff from having access to air and light and in case of emergency fire fighters cannot have the space to access.

3. The plaintiff prayed for declaration of title in respect of ‘Ka’ schedule property and also prayed for further declaration that the defendant has undertaken construction work illegally after having the building plan sanctioned by the Municipal Authority and for mandatory injunction to demolish the construction already undertaken on the northern side of the boundary of ‘Ka’ schedule property within the four feet space.

4. The defendant contested the suit by filing written statement denying all material allegations made against him.

5. It is specific case of the defendant that 15 inch width boundary wall was in existence in between the ‘Ka’ and ‘Kha’ schedule property which was constructed by predecessor-in-interest of the parties to the suit. The plaintiff constructed his house without leaving any side space following the Municipal Act with the consent of the defendant and it was agreed upon by the parties that the defendant would also construct his house over the ‘Kha’ schedule property without leaving the required side space. The parties further decided not to keep any window or door on the northern side wall. However, when the defendant started constructing his house the plaintiff filed the suit. Learned Trial Court after considering the pleadings of the parties framed the following issues :

1. Is the suit maintainable in its present form and prayer?

2. Is there any