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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
Jallaludeen
Versus
R.S. Chinnaiyan Chettiar & Others
S.A.No.1370 of 1993
Decided On :Decided on : 15-04-1999
EASEMENT OF LIGHT AND AIR - DECLARATION - MANDATORY INJUNCTION - ACQUISITION OF EASEMENT - SECTION 15 OF THE INDIAN EASEMENTS ACT, 1882 - SUBSTANTIAL QUESTION OF LAW - APPELLATE COURT'S POWER TO GRANT RELIEF - PROOF OF EASEMENT - ADJACENT OWNERS - BUILDING RULES - NUISANCE - DELAY - ACQUIESCENCE - DISCRETION OF COURT - DAMAGES - FULL BENCH JUDGMENT OF ORISSA HIGH COURT - DIVISION BENCH JUDGMENTS OF CALCUTTA HIGH COURT - DIVISION BENCH JUDGMENT OF BOMBAY HIGH COURT - SPECIFIC RELIEF ACT, 1877 - MUNICIPAL ACT - BUILDING PLAN - SANCTION - DIMINUTION OF LIGHT AND AIR - PRESCRIPTION - EASEMENT RIGHT - INJUNCTION - PUBLIC AUTHORITIES' ACTION - ERRONEOUS ASSUMPTIONS - CONCURRENT FINDINGS - INTERFERENCE BY APPELLATE COURT - MODIFICATION OF DECREE - INJUNCTION AGAINST FURTHER CONSTRUCTION.
Fact of the Case:
Plaintiffs filed a suit seeking a declaration of their right to easement of light and air, a permanent injunction restraining the defendant from obstructing light and air, and a mandatory injunction to demolish the unauthorized construction on the defendant's property. The defendant denied the plaintiffs' claims and contended that the construction was in accordance with the Building Rules and necessary sanction had been obtained.
Finding of the Court:
The trial court granted the relief of permanent injunction forbearing the defendants from putting up any construction close to the northern wall, besides the grant of mandatory injunction directing the defendants to remove the offending unauthorized construction put up adjacent to the northern compound wall. The first appellate court dismissed the defendant's appeal and modified the judgment and decree of the trial court, while allowing the cross objections in part. As per the judgment and decree of the first appellate court, the relief of declaration has been granted in favour of the plaintiffs holding that the plaintiffs are entitled to receive light and air, and mandatory injunction was also granted directing the defendants to remove the construction put up over the northern compound wall on or before 30.1.1993 and the Unauthorized construction put up by the defendant has to be demolished by the defendant.
Issues: 1. Whether the Appellate Court is entitled to grant the relief of declaration of the right of easement of light and air to the respondent without any proof of acquisition of easementary right of light and air under Section 15 of the Indian Easements Act, 1882? 2. Whether the plaintiffs are entitled to the relief of mandatory injunction as the construction had already been completed in accordance with the sanctioned plan? 3. Whether the plaintiffs are entitled to equitable relief of mandatory injunction under Section 39 of the Specific Relief Act as the plaintiffs acquiesced themselves in the construction put up by the defendant and there is no justification to grant the relief of mandatory injunction for demolition of the building put up by the defendant very much inside his property? 4. Whether the exercise of discretion by the two Courts below in granting mandatory relief of injunction is contrary to law and settled legal position and authorities and therefore the judgment of the two Courts below are liable to be reversed? 5. Whether the plaintiffs are entitled to the relief of declaration with respect to light and air in the absence of any specific plea put forward by them in the evidence? 6. Whether the plaintiffs are entitled to the relief of mandatory injunction when admittedly there are no apertures or holes or window on the defendants property and when the plaintiffs property is located away from the boundary limits of defendants property and when there is no diminution in the light and air which the plaintiffs have been receiving through the available open space, as well as the balcony?
Ratio Decidendi: 1. The plaintiffs, being recent purchasers, not having established prescribed or easementary right to light and air by being in possession and enjoyment for over a statutory period cannot complain that, the defendants had interfered with usual flow of light and air. 2. The plaintiffs being purchasers of the year 1981 and having filed the suit in 1989, cannot claim that they have prescribed a right of easementary right of light and air. 3. It has not been established that the defendants have reduced the natural air and light by their putting up additional construction inside their land and within the compound. 4. Even assuming that the defendants had put up the construction very close to the compound, while such a construction is well within the first defendnts land and such a construction was admittedly not on the dividing line or on the compound. 5. It is not as if the construction along the compound wall is a new construction, but the defendants main building has been in existence for quite some time and only addition or alteration has been undertaken as seen from Exs. B3 and B.4. 6. Further, the plaintiffs have kept silent till the first floor was completed. That being a factual position. It is not open to the plaintiffs to complain about the construction or the alteration put up by the first defendant after completion and more so, when the plaintiffs have not provided for any window or apertures in that direction, nor it has been established that the plaintiffs have been receiving the quantum of light and air from that direction or diminution thereof. 7. In the absence of interference of the easementary right to light and air, it is not open to the plaintiffs to contend that there is interference and the plaintiffs are entitled to the reliefs of declaration and mandatory injunction.
Final Decision: The Second Appeal is allowed and the judgment and decree of the two courts below are modified and there will be a decree in favour of the plaintiffs forbearing the first defendant from putting up any further construction here afterwards close to plaintiffs property so as to obstruct free flow of light and air. The parties shall bear their respective costs throughout.
The defendant in O.S. No. 469 of 1989 on the file of the XV Assistant Judge, City Civil Court, Chennai, who had lost before the two courts below is the appellant in this Second Appeal. This Second Appeal is directed against the judgment and decree of the learned principal Judge, City Civil Court, Chennai dated 30.11.1992 made in A.S. No. 152 of 1992.
2. At the time of admission the following substantial question of law was framed for consideration:
“Whether the Appellate Court is entitled to grant the relief of declaration of the right of easement of light and air to the respondent without any proof of acquisition of easementary right of light and air under Section 15 of the Indian Easements Act, 1882?”.
Apart from the said question of law, the learned counsel for the appellant raised various other contentions which are all substantial questions according to him and submitted detailed arguments.
3. It is the attempt on the part of the learned counsel for the appellant to persuade this Court to interfere with the findings of the two courts below as according to the learned counsel the two Courts below have failed to consider the advert material portion of the evidence, their appreciation of evidence is perverse and that they have not applied the correct principles of law.
4. Per contra , Mr. A.B. Sampath Kumar, the learned counsel for the respondents contended that no interference is called for with respect to the judgment and decree of the two Courts below.
5. Heard Mr. P.K. Sivasubramanian, for the appellant and Mr. A.B. Sampathkumar for respondents
1. For convenience, the parties wall be referred as arrayed before the trial Court.
6. The plaintiffs instituted the suit O.S. No. 469 of 1989 seeking for the following reliefs:—
(a) for a declaration that the plaintiffs are entitled for light and air in the schedule mentioned property;
(b) for a permanent injunction restraining the first defendant, his agents, servants or anybody else claiming through or under him from in any manner obstructing the light and air through the windows and ventilators and openings on the northern side of the plaintiffs property bearing door No. 8, Mannar Reddy Street, T. Nagar, Chennai-17 and more fully described in the Schedule hereunder either by putting up any construction or by any other means;
(c) for a mandatory injunction against the defendants to demolish the unauthorized construction on the northern side compound wall of the plaintiffs property bearing door No. 8, Mannar Reddy Street, T. Nagar, Madras-17 as set out in the sketch annexed thereto.
7. According to the plaintiffs they are the absolute owners of the house ground and premises bearing door No. 8, Mannar Reddy Street, T. Nagar, Chennai, which they have purchased on 30.10.1981, that the plaintiffs and their predecessors have been in possession of the suit property for over twenty years, that the plaintiffs property is located on the southern side of the property bearing Door No. 9, Mannar Reddy Street, owned by the first defendant having a passage of eight feet on the eastern side leading to Mannar Reddy Street, that Door No. 9, Mannar Reddy Street consists of a Building and a vacant space on the south eastern and western sides, that the first defendant commenced additional construction on the vacant site on the southern side of his premises during October, 1988, that the additional construction has been built quite flush to the plaintiffs premises to a length of 60 feet east to west and to a length of 12 feet, east to west leaving only a space of two feet, that such a construction is contrary to the Building Rules, that the plaintiffs have sent objections to the defendants and representation about the unauthorized construction, that the defendants 2 and 3 have not taken any steps, emboldened by the inaction on the part of the defendants 2 and 3, the first defendant proceeded further with the construction on his land, that the unauthorized construction completely obstructed th
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