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KERALA HIGH COURT
A.Hariprasad, J.
Thambi Cheriyan —Appellant
versus
Babu —Respondent
R.S.A.No.786 of 2011
Decided on 26.6.2015
For the Appellant:Mr.K.Ramachandran, Mr. P. Ramachandran & Mr.S.Jayasree, Advocates
For the Respondent:Mr.T.N.Manoj, Advocate
IMPORTANT POINTS
(1) Natural right of view or prospect, cannot be acquired as an easement right as it does not come within the definition of easement under Section 4 of the Act.
(2) When it is clear from the evidence on record that the defendant was attempting to interfere in the possession of the plaintiff, the plaintiff will be entitled to injunction.
Headnote:(A) Easements Act, 1882 Sections 4 & 7- Acquisition of easement rights – Right to view or prospect to one’s building- It is not a natural right and cannot be acquired as an easement, because such right does not come within the definition of easement under Section 4 of the Act- More over under Section 7 natural rights can be claim in respect of immovable properties only (Paras 11, 12 and 13)
(B) Specific Relief Act 1963 Sections 38 and 39- Permanent injunction restarting the defendant from causing any obstruction into the enjoyment of the plaintiff- Evidence showing that there was an attempt of interference into the possession of the plaintiff-Defendant also challenged rights of the plaintiff as per assignment deed-The plaintiff held entitled to injunction sought (Para 17)
Facts of the Case
Father of the plaintiff purchase the shop from the defendant vide assignment deed in 1996. The plaintiff alleged that the PWD authorities had taken steps to widen the role on the west and that the authorities found the stair case built by the defendant on the North West side was projecting into the government puramboke. It was contended that the defendant was intending to install some fixtures in front of the shop room of the plaintiff causing obstruction to be view to his jewellary from the main road and sought injunction against the defendant.
Findings of the Court
For obtaining the decree the plaintiff should establish a threat or possibility of infringement of his legal right. Section 7 of 1882 Act deals with natural rights. It deals with the rights of every owner of immovable property to enjoy and dispose of the same. All these rights cannot be extended to man made construction. It is well settled that natural rights are rights in rem and are inherent in land. The right to prospect or view is not a natural right and cannot be acquired as an easement as it dose not fall within the definition of easement under Section 4 of the Act.
Commissioner’s report and oral evidence show that there was an attempt to interfere with the plaintiff’s use of the open space on the western side of the building, which was used for entry to the shop room. Relying on Section 38 (3) (c) it was contended that the evidence collectively probablized the case pleaded by the plaintiff. It is true that there is a challenge raised by the defendant against the rights conferred on the plaintiff.
Result Appeal partly allowed.
A.Hariprasad, J.—This regular second appeal raises important questions of law. Does the law permit a person to claim unhindered or unobstructed prospect or view to any building (here a commercial building) as a matter of right ? Can a person claim a decree for permanent prohibitory injunction based on the alleged violation of such a right ?
2. Heard Sri.K.Ramachandran, learned counsel for the appellant and Sri.T.N.Manoj, learned counsel for the respondent.
3. The defendant in a suit for such a relief is the appellant and the plaintiff, the respondent. Parties are hereinafter referred to as the plaintiff and defendant. Decree passed by the trial court, which was confirmed in appeal, reads thus :
“ That the defendant and his men are restrained by permanent prohibitory injunction from installing any new fixtures or stair case infront of the plaintiff’s plaint schedule shop room causing any hindrance or obstructions to the view, vicinity or access to the plaint schedule shop room.”
4. Even though in the plaint a right to have an unhindered or unobstructed vicinity is also claimed and the same was allowed by the courts below, the learned counsel for the plaintiff fairly conceded that there is no legal foundation for that claim. Further, the claim for a permanent prohibitory injunction based on a right called unhindered vicinity is not legally recognizable one and too vague to be granted by a court of law either under the provisions of the Specific Relief Act, 1963 or otherwise. Therefore, what is remaining as a bone of contention is the legality and propriety of a legal right called the right to prospect (view) to the plaintiff’s building.
5. Relevant pleadings, in nutshell, are as follows :
Plaint schedule shop room was purchased by father of the plaintiff from the defendant as per Ext.A1 assignment deed in the year 1996. Plaintiff’s father died and the property devolved on his legal heirs, including the plaintiff. He is conducting jewellery business in the plaint schedule shop room. The defendant is the owner of a building complex in which the plaint schedule shop room is also a part. From the descriptions in the schedule to the plaint, it can be seen that on the western boundary of the plaint schedule shop room, a main road and an open space are situated. On the southern boundary, an open space and a way through the building exist. It is an admitted case that a staircase is in existence on the north-western corner of the building for facilitating access to the upper stairs. The plaintiff alleged that the PWD authorities had taken steps to widen the road on the west. It is the contention of the plaintiff that on taking measurements, the authorities found that the staircase built by the defendant on the north-western side of the room was projecting into the government puramboke. Plaintiff reliably learnt that the authorities had issued notice to the defendant directing him to demolish the staircase encroaching onto the puramboke. Plaintiff’s jewellery is facing a main thoroughfare. His father purchased the room considering various factors like the road frontage, unhindered view from the road, easy access from the road etc. Plaintiff contended that the defendant was taking hectic steps to install some fixtures and a staircase infront of the shop room of the plaintiff causing obstruction to the view to his jewellery from the main road. Acts intended by the defendant may even adversely affect the access to jewellery.
6. The defendant filed a written statement stating that he did not receive any notice from the PWD authorities demanding demolition of the staircase. Defendant further contended that he has not trespassed into the government puramboke. The staircase is well within the limits of his property. Defendant also disputed the claim of the plaintiff based on a right to prospect. According to the defendant there is no cause of action for the suit.
7. The trial court, after considering the oral and documentary evidence produce
