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2017 Supreme(Mad) 3898
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
K.E. Mohan – Appellant
Versus
J.K. Narasimha Bhagavathar (deceased) – Respondent
S.A. No. 1036 of 2001
Decided On : 13-12-2017
For the Appellant : Mr. K. Bijai Sundar.
For the Respondent: Mr. Haja Naziruddeen for M/s. R. Tholgappian.
Headnote:
Civil Laws – Suit for Permanent Injunction – Second appeal is directed against the judgment and decree made in A.S. on the file of the Subordinate Court, Arni, Thiruvannamalai District, confirming the judgment and decree made in O.S. on the file of the District Munsif Court, Arni. – Earlier suit O.S. having been dismissed on merits, is the respondent entitled in law to close the ventilators and windows – Are the Courts below right in concluding that there was no agreement between the parties, permitting the appellant to have the windows and ventilators, in the light of the specific finding given to the contrary under issue No. 6 in O.S. No. 514 of 1980? – Whether the respondent, what he could not achieve directly by way of filing a suit, could seek to achieve indirectly by raising a wall – Held, It is found that the defendant has raised the wall only within the northern limits of his property and in such view of this matter, it is seen that the construction of the said wall by the defendant would not amount to the closure of the windows put up by the plaintiff on the southern side of the wall, when it is found that as per the materials, the said construction at the most would result in the closure of only one window and the raising of the said wall would not in any manner affect the existence of the other windows and ventilators put up by the plaintiff and therefore, it is seen that accordingly, the Courts below have rightly held that on the above said issue also that the plaintiff is not entitled to obtain the relief of permanent injunction and the determination of the Courts below is found to be reasonable and acceptable and nothing has been pointed out to hold that the above said finding or determination is against the evidence on record. – In the absence of any material, it is found that the Courts below have correctly held that there is no agreement between the parties, particularly, no permission had been granted by the defendant to the plaintiff to put up the windows and ventilators in the southern wall and it is also found that the finding given with reference to the same under issue No. 6 in O.S. No. 514 of 1980 is, as above determined, perverse and unacceptable in the eyes of law. – The plaintiff having failed to establish any kind of right under which he is entitled to maintain the windows and ventilators on the southern side of his wall and when it is seen that the defendant has not granted any permission to the plaintiff to put up the said windows and ventilators and when it is further noted that the defendant has raised the wall only within the limits of his property and the construction of the said wall has not shown to be against law or the contrary to the approval/sanction of the competent authority concerned, it is found that as rightly determined by the Courts below, the defendant is not attempting to achieve indirectly what he could not obtain by raising the wall in his property. – The issues formulated in the second appeal are accordingly answered. – Second Appeal Dismissed
1. This second appeal is directed against the judgment and decree dated 30.11.2000 made in A.S. No. 11 of 1996 on the file of the Subordinate Court, Arni, Thiruvannamalai District, confirming the judgment and decree dated 15.11.1995 made in O.S. No. 897 of 1992 on the file of the District Munsif Court, Arni.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for Permanent Injunction.
4. The case of the plaintiff, in brief, is that the plaintiff is the owner of the building bearing door No. 193, Sathiyamoorthy Road, Arni town and the defendant was owning an old house on the southern side of the plaintiff's building and he had demolished his old building and put up a new building therein and the defendant has permitted the plaintiff to have the windows and ventilator on the southern wall of the plaintiff and thereby, the plaintiff had put up sunshades and 12 windows on the southern side of the wall facing the defendant's property and when the plaintiff was putting up the construction, the defendant filed a suit for permanent injunction for a direction by way of mandatory injunction to close the 12 windows and remove the sunshades in O.S. No. 514 of 1980 on the file of the District Munsif Court, Ranipet and the said suit was dismissed, after contest and no appeal has been preferred against the same by the defendant and the defendant has been keeping quite all these years, now, attempting to close the windows and sunshades by raising a wall adjacent to the southern wall of the plaintiff, wherein, windows are put up and the defendant having lost the suit in O.S. No. 514 of 1980 as above adverted to, cannot be allowed to close the windows and sunshades in directly and thereby, obstruct the plaintiff's air and light and in O.S. No. 514 of 1980, the Court has held that the defendant has no right to remove the sunshades and windows put up by the plaintiff on his side of the wall and the Court has held that the defendant was estopped from complaining the same and hence, the defendant is estopped by his own conduct and as per the judgment and decree rendered in O.S. No. 514 of 1980 and on the other hand, inasmuch as the defendant attempted to close the windows and sunshades by raising a wall, the plaintiff has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendant, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the defendant had permitted the plaintiff to have his windows and ventilators on the southern wall of the plaintiff. On the other hand, the plaintiff had raised a skin wall along the wall of the defendant and put up the windows and ventilators and also put up projecting sunshades, violating the space of the defendant and hence, the defendant filed a suit in O.S. No. 514 of 1980 for mandatory injunction as the plaintiff had high handedly encroached into the area of the defendant and put up the above structures and the plaintiff cannot claim as a matter of right the light and air on the basis of prescriptive easement and the plaintiff also cannot have any right to prevent the defendant from putting up the wall in his own property and no doubt, the wall put up by the defendant screens one of the windows of the plaintiff, but that wall has been put up over the ground wall of the defendant and if thereby, one of the windows gets closed, the defendant cannot be blamed for the same as the defendant has no statutory bar from putting up such constructions and in and around areas of the locality walls are being put up by the residents in their own area, resulting in, closure of the windows of the neighbours and by the same, the plaintiff cannot have any cause of action to institute the suit against the defendant and hence, the suit is liable to be dismissed.
6. In support of the plaintiff's case, PW-1 has been examined and Exs.A1 and 2 were marked. On the side of the defendant, DW-1 was examined and no d
