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2018 Supreme(HP) 1637
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Raghu Nath - Appellant
Versus
Shiv Ram & Anr. - Respondents
R.S.A. No. 501 of 2017
Decided On : 01-05-2018
G.R Palsra, H.S Rangra, Advocates for the appearing parties.
The court upheld the plaintiffs' easementary right to sunlight and air, and found the defendant's unauthorized construction to be illegal.
Headnote:
Easementary Right - Property Dispute - H.P. Town and Country Planning Act, H.P. Municipal Act - Section 39, Section 211, Section 184 - The court upheld the plaintiff's right to sunlight, air, and privacy, and ordered the defendant to demolish unauthorized construction and maintain status quo ante.
Fact of the Case:
The plaintiffs filed a suit against the defendant for permanent prohibitory and mandatory injunction, alleging that the defendant's construction was blocking their right to sunlight and air. The trial court decreed in favor of the plaintiffs, which was upheld by the District Judge.
Finding of the Court:
The court found that the defendant's construction was unauthorized and obstructed the plaintiffs' right to sunlight and air. The court upheld the judgments and decrees passed in favor of the plaintiffs.
Issues: The issues included the entitlement of the plaintiffs to injunction, maintainability of the suit, estoppel, locus standi, and non-joinder and misjoinder of necessary parties.
Ratio Decidendi: The construction raised by the defendant was found to be illegal as it was carried out without any sanction from the competent authority. The court also upheld the plaintiffs' easementary right to sunlight and air, which the defendant's construction infringed upon.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
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. 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 cont
