Mere violation of municipal plan and rules does not give a cause of action. Plaintiff must prove Defendant's construction resulted in an invasion of his right to light, air, and privacy causing material injury.

JUDGMENT :

J.K. Mohanty, J. - Plaintiff is the Appellant in both these appeal. The Plaintiff had filed a suit claiming right of easement for removal of encroachment made by the Defendant, for permanent injunction restraining the Defendant from constructing any structure over the schedule 'A' land within 5' from his southern wall in holding No. 109 and also for restraining the Defendant not to obstruct his windows, ventilators and exhaust fans so as to interfere with his right to light and air. The Plaintiff has a four-storied building at Marwari Pada in Sambalpur town bearing holding No. 109 by the side of the Defendant 'E' land described in schedule 'A' to the plaint. The Plaintiff has 14 windows, ventilators and exhaust fans facing the schedule 'A' land of the Defendant and through these the Plaintiff is enjoying light and air since long and has acquired the right of easement. The Defendant had a temporary shed of 15' dimension in the western corner of the schedule 'A' land. The rest of the land was vacant. The Defendant started constructing a residential building covering the entire area in violation of the provisions of Orissa Municipal Act and Rules without leaving a set back of 5' from the Plaintiff's wall with a view to deprive him from enjoying the natural light and air through his windows, ventilators, etc.. The Defendant had also (sic) upon a strip of 5" of his plinth. He had also' attributed fraud and suppression of material particulars to get the sanction of the plan approved by the Executive Officer of the Municipality. As the Defendant turned a deaf ear to the protests of the Plaintiff and proceeded ahead with the construction, the Plaintiff had filed the suit.

2. The Defendant filed written statement and contended that he had a forty year old Kachcha house on a portion of his land in holding No. 109. He started construction of a new building in place of the old one after obtaining permission and sanction of the plan from the Municipal and Town Planning Authorities. He had not violated any provision of the Municipal Act or Rules in constructing his building. Earlier, the Plaintiff had constructed his house adjoining the north of the Defendant's house without leaving the set back of 5' at the border between them in clear violation of the Municipal Act and Rules. He had also constructed the house without obtaining a permission from the authorities concerned. In doing so, the Plaintiff had encroached upon a strip 1 in width from the Defendants land in spite of his protest. The Defendant denied the allegation of encroachment of 5 of land and also denied any right of easement of the Plaintiff to light and air.

3. The learned Munsif, Sambalpur, who heard the suit, held that none of the parties have encroached upon the land of the other in constructing their respective buildings. The Plaintiff has not acquired any right of easement to light and air as stated by him. He, however, held that the Defendant has violated the provisions of the Municipal Act and Rules while constructing a new building by not leaving a set back of 3' from the Plaintiff's southern wall. Against the aforesaid judgment had decree, the Defendant preferred an appeal. The Plaintiff also preferred an appeal on the ground that the learned Munsif should have found that there was encroachment of his land by the Defendant and that he had right of easement which entitled him to an order of injunction as prayed for by him. The appellate court allowed the appeal preferred by the Defendant and dismissed the appeal filed by the Plaintiff. Both the appeals were disposed of by a common judgment. The Plaintiff has now preferred these appeals against the aforesaid judgment and decree of the lower appellate court.

4. Both the courts below have concurrently held that the Plaintiff has no easementary right as claimed. The parties have not encroached upon each other's land. This position is also not disputed here. The controversy now centres round the question,

whether the