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High Court of Judicature at Madras
P.R. SHIVAKUMAR, J,
V.M. Saineesa
Versus
S. Shanthi & Others
S.A. No. 286 of 2011 & M.P. No. 1 of 2011
Decided on : 29-01-2013
SUIT FOR DAMAGES - INJUNCTION - EASEMENT - TOWN AND COUNTRY PLANNING ACT - CONSTRUCTION WITHOUT LEAVING SPACE - PRESCRIPTIVE EASEMENT - ACQUISITION OF EASEMENT - INTERRUPTION - DECLARATION - MANDATORY INJUNCTION - PERMANENT INJUNCTION - APPEAL - SECOND APPEAL - SUBSTANTIAL QUESTION OF LAW - MAINTAINABILITY OF SUIT - JURISDICTION OF CIVIL COURT - BAR OF JURISDICTION - PLANNING AUTHORITY - ACTION AGAINST UNAUTHORIZED CONSTRUCTION - APPROVAL OF PLAN - CONSTRUCTION IN ACCORDANCE WITH PLAN - DEVIATION FROM PLAN - REGULARIZATION - EASEMENT BY NECESSITY - ACQUISITION BY PRESCRIPTION - PERIOD OF ENJOYMENT - INTERRUPTION - CESSATION OF ENJOYMENT - SUBMISSION TO OBSTRUCTION - SUSPENSION OF ENJOYMENT - CONTRACT BETWEEN DOMINANT AND SERVIENT OWNERS - POLLUTION OF WATER - GOVERNMENT PROPERTY - LIMITATION PERIOD - ADMISSION OF PLAINTIFF - CLOSURE OF WINDOWS - UNDERTAKING BY DEFENDANT - NO RIGHT TO CLAIM EASEMENT - PROVISION OF WINDOWS AND VENTILATORS - CLOSURE OF WINDOWS AND VENTILATORS - TRESPASS - REMOVAL OF PIPELINES - DAMAGES - DISMISSAL OF SUIT - MODIFICATION OF DECREE - RELIEF GRANTED - COSTS.
Fact of the Case:
Plaintiff filed a suit for damages, injunctions, and a declaration of prescriptive easement against the defendants. The first defendant constructed a building without leaving any space between her property and the plaintiff's property. The plaintiff claimed that she had a prescriptive easement to draw light and air through the windows on the southern wall of her building and that the first defendant's construction had deprived her of this easement. The plaintiff also sought a mandatory injunction against the defendants 2 and 3, the Chennai Metropolitan Development Authority (CMDA) and the Corporation of Chennai, to take action against the first defendant's unauthorized construction. The trial court granted the plaintiff's claims for mandatory and permanent injunctions but dismissed her claim for damages. The first defendant appealed to the lower appellate court, which allowed the appeal and set aside the trial court's decree. The plaintiff then filed a second appeal to the High Court.
Finding of the Court:
The High Court held that the suit was maintainable and that the Civil Court had jurisdiction to entertain the plaintiff's claims. The Court found that the first defendant had obtained planning permission for her construction and that she had constructed the ground floor and first floor in accordance with the approved plan. However, the Court found that the construction of the second floor was not in accordance with the approved plan and that the plaintiff was entitled to a mandatory injunction directing the defendants 2 and 3 to take action against the first defendant in respect of the second floor construction. The Court also found that the plaintiff had failed to prove that she had acquired a prescriptive easement to draw light and air through the windows on the southern wall of her building. The Court further found that the first defendant had provided an undertaking not to claim any easement of drawal of light and air through the windows and ventilators provided on the northern wall of her building and that the plaintiff was entitled to a permanent injunction against the first defendant from entering any portion of the plaintiff's property or the open space over it without the plaintiff's permission for the purpose of plastering, whitewashing, or maintaining her northern wall. The Court also found that the first defendant had trespassed on the plaintiff's property by providing pipe connections on the northern surface of her northern wall and that the plaintiff was entitled to a mandatory injunction to remove the pipelines.
Issues: 1. Whether the suit was maintainable and the Civil Court had jurisdiction to entertain the plaintiff's claims? 2. Whether the first defendant had obtained planning permission for her construction and whether she had constructed the ground floor and first floor in accordance with the approved plan? 3. Whether the construction of the second floor was in accordance with the approved plan and whether the plaintiff was entitled to a mandatory injunction directing the defendants 2 and 3 to take action against the first defendant in respect of the second floor construction? 4. Whether the plaintiff had acquired a prescriptive easement to draw light and air through the windows on the southern wall of her building? 5. Whether the first defendant had provided an undertaking not to claim any easement of drawal of light and air through the windows and ventilators provided on the northern wall of her building? 6. Whether the plaintiff was entitled to a permanent injunction against the first defendant from entering any portion of the plaintiff's property or the open space over it without the plaintiff's permission for the purpose of plastering, whitewashing, or maintaining her northern wall? 7. Whether the first defendant had trespassed on the plaintiff's property by providing pipe connections on the northern surface of her northern wall? 8. Whether the plaintiff was entitled to a mandatory injunction to remove the pipelines?
Ratio Decidendi: 1. The suit was maintainable and the Civil Court had jurisdiction to entertain the plaintiff's claims because the plaintiff was seeking a declaration of her prescriptive easement and an injunction against the first defendant's unauthorized construction, which were matters within the jurisdiction of the Civil Court. 2. The first defendant had obtained planning permission for her construction and had constructed the ground floor and first floor in accordance with the approved plan, as evidenced by the approved plans and the reply submitted by the first defendant to the demolition notice issued by the CMDA. 3. The construction of the second floor was not in accordance with the approved plan, as admitted by the third defendant, and the plaintiff was entitled to a mandatory injunction directing the defendants 2 and 3 to take action against the first defendant in respect of the second floor construction, subject to the condition that the construction could be regularized if permissible under the Town and Country Planning Act and the rules framed thereunder. 4. The plaintiff failed to prove that she had acquired a prescriptive easement to draw light and air through the windows on the southern wall of her building because she failed to show that there were two windows on the southern wall of her building, that she had been drawing light and air through those windows for more than 20 years, and that her enjoyment of the easement had not been interrupted for more than two years prior to the filing of the suit. 5. The first defendant had provided an undertaking not to claim any easement of drawal of light and air through the windows and ventilators provided on the northern wall of her building, and the plaintiff was entitled to a permanent injunction against the first defendant from entering any portion of the plaintiff's property or the open space over it without the plaintiff's permission for the purpose of plastering, whitewashing, or maintaining her northern wall. 6. The first defendant had trespassed on the plaintiff's property by providing pipe connections on the northern surface of her northern wall, and the plaintiff was entitled to a mandatory injunction to remove the pipelines.
Final Decision: The High Court allowed the second appeal in part, set aside the decree passed by the lower appellate court, and modified the decree passed by the trial court. The plaintiff was granted a mandatory injunction to remove the pipelines put up on the northern wall of the first and second floors of the first defendant's building, a permanent injunction restraining the first defendant from entering any portion of the plaintiff's property for the purpose of plastering or whitewashing the walls of the new construction or for any other purpose without the plaintiff's permission, and a mandatory injunction directing the defendants 2 and 3 to take action against the first defendant regarding the unauthorized construction of the second floor portion of the building by initiating appropriate action within 3 months in accordance with the provisions of the Town and Country Planning Act and the rules framed thereunder, with a clarification that such powers would also include the power of regularization according to rules. The suit was dismissed in respect of all other prayers. There was no order as to costs, and the parties were to bear their respective costs in all the three courts.
The plaintiff in the original suit is the appellant in the second appeal. She filed the suit O.S.No.2612 of 2003 on the file of the III Assistant Judge, City Civil Court, Chennai:
1) for recovery of a sum of Rs.50,000/-from the first respondent/first defendant as damages together with an interest on the said amount at the rate of 12% p.a from the date of plaint till the date of decree and a further interest at the rate of 6% p.a from the date of decree till payment;
2) for a mandatory injunction against the first respondent/first defendant to remove the new pipeline put up on the northern wall of the first and second floors at No.13/7, Sundaravinayagar Koil First Lane, Sembium, Chennai- 11;
3) for a mandatory injunction against the first respondent/first defendant directing the removal of the northern wall in the ground floor of the said building opposite to the two windows on the southern wall of the house of the appellant/plaintiff and thus restore the original position allowing free air and light through the windows in the rooms of the plaintiff's property;
4) for a permanent injunction restraining the first defendant from putting up shutters for the windows in the northern wall of the first and second floors of the building bearing Door No. 13/7, Sundaravinayagar Koil First Lane, Sembium, Chennai- 11 so as to open the same into the space over the plaintiff's property;
5) for a permanent injunction restraining the first respondent/first defendant from entering a portion of the property of the plaintiff bearing Door No. 9/5, Sundaravinayagar Koil First Lane, Sembium, Chennai-11 for the purpose of plastering and whitewashing the walls of the new construction of the first defendant or any other purpose;
6) for a mandatory injunction against the defendants 2 and 3 to exercise their powers and take action against the first respondent/first defendant for the unauthorized construction of the building of the first respondent/first defendant; and
7) for costs.
2. Second respondent/second defendant remained ex parte before the trial Court. First and third defendants contested the suit. At the end of trial, the trial Court decreed the suit in part with costs and granted the reliefs of mandatory injunction and permanent injunction as prayed for. So far as the relief of damages claimed in the suit was concerned, the trial Court dismissed the suit.
3. As against the judgment and decree of the trial Court dated 25.07.2007, the first respondent / first defendant preferred an appeal in A.S.No.68 of 2008 on the file of the V additional Judge, City Civil Court, Chennai. The learned V Additional Judge, City Civil Court, Chennai (lower appellate Judge) allowed the appeal with costs and set aside the decree passed by the trial Court. As against the judgment and decree of the lower appellate Court dated 06.07.2010, the present second appeal has been filed by the appellant herein/plaintiff.
4. The contention of the appellant/plaintiff, in brief, are as follows:
The house bearing Old Door No.5 (New Door No.9/5) in Block No.9, T.S.No.42/2 at Sundaravinayagar Koil First Lane, Sembium, Chennai-11 belongs to the appellant/plaintiff. She had purchased 2000 sq.ft of land and a building with tiled roof from one Mohan under a sale deed dated 31.08.1974 registered as Document No.3174 of 1974. The said building faces west through a lane. After purchase, the tiled structure on the northern part of the building was converted into a terraced structure and the southern portion continued to be a structure with mangalore tiled roof. The said southern portion is in the occupation of tenants. There are two windows, one in the first room situated on the western side and the other in the second room situated on the eastern side. They form the only source for drawing light and air to the said rooms. The appellant/plaintiff and her predecessors-in-interest have got prescriptive right of easement for the flow of light and air through the windows by enjoying the same
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