IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 14.06.2024 PRONOUNCED ON : 30.07.2024 CORAM THE HONOURABLE MR.JUSTICE V.SIVAGNANAM S.A.Nos.717 of 2012 & 88 of 2013 S.A.No.717 of 2012 K.G.Paul ... Appellant Vs.

1.K.Ramesh

2.Hotel Residency Lodging House, Rep by its Partner, K.Ramesh, No.4-47, Venkat Road, Salem – 636 001.

3.Salem Municipal Corporation, Rep by its Commissioner, Sevapet Main Road, Fort Salem.

4.The Tamil Nadu Pollution Control Board, Rep.by its officer, District Environment Office, Meyyanur, Salem. ... Respondents S.A.No.88 of 2013

1.K.Ramesh

2.Hotel Residency Lodging House, Rep by its Partner, K.Ramesh, No.4-47, Venkat Road, Salem – 636 001. ... Appellants Vs.

1.K.G.Paul

2.Salem Municipal Corporation, Rep by its Commissioner, Sevapet Main Road, Fort Salem.

3.The Officer, Tamil Nadu Pollution Control Board, District Environment Office, Meyyanur Salem. ... Respondents Common Prayer:- Second Appeals have been filed under Section 100 of CPC against the Judgment and Decree of the II Additional Subordinate Court, Salem, dated 23.11.2011, in A.S.No.107 of 2010, modifying the Judgment and Decree of the II Additional District Munsif Court, Salem, dated 21.11.2009 in O.S.No.394 of 2006.

In S.A.No.717 of 2012 For Appellant : Mr.T.Murugamanickam, Senior Counsel for M/s.Zeenath Begum.

For R1 & R2 : Mr.M.Devaraj For R3 & R4 : Given up In S.A.No.88 of 2013 For Appellant : Mr.M.Devaraj For R1 : Mr.T.Murugamanickam, Senior Counsel for M/s.Zeenath Begum.

For R2 : No appearance For R3 : No appearance C O M M O N J U D G M E N T Challenge in these second appeals is made to the Judgment and Decree dated 23.11.2011, in A.S.No.107 of 2010, on the file of the II Additional Subordinate Court, Salem, modifying the Judgment and Decree dated 21.11.2009 in O.S.No.394 of 2006, on the file of the II Additional District Munsif Court, Salem.

2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.

3.The case of the plaintiffs, in brief, is that the 1^st plaintiff purchased the A schedule property on 16.08.1985. A settlement deed was executed on 04.02.2005 in favour of the 1^st plaintiff's father by his brother. In turn, the 1^st plaintiff's father executed a settlement deed in favour of the 1^st plaintiff on 10.02.2005. A partnership firm was registered on 07.04.2009 in the name and style of Hotel Residency. The assets were transferred to the partnership firm. On 10.02.2005, the 1^st plaintiff's wife joined as a partner in the firm. In the suit property, a lodging house was constructed in the year 1986 and was functioning from that year onwards. The northern side of the wall has windows for light, ventilation and passage and free air into the suit property. The 1^st plaintiff is enjoying the same for 20 years uninterruptedly. The 1^st defendant purchased the B schedule property and runs an hotel by name Hotel Sri Krishna. The B schedule property is adjacent to the A schedule property. The 1^st plaintiff was granted licence for the Hotel Residency. The 1^st defendant has demolished the construction in the B schedule property and attempting to construct new building in the B schedule property. The 1^st defendant demolished the wall which belonged to the plaintiff and planning to construct his kitchen in the B schedule property. If the kitchen is constructed in the B schedule property abutting the wall of the B schedule property, the heat will affect the walls of the lodge and disturb the public in general. The construction will obstruct the light and air. The construction will cause loss to the 1^st plaintiff. The kitchen will create health hazard and fire risk. The 1^st plaintiff questioned the unauthorized construction, but the defendants did not care.

Hence the suit.

4.The first defendant denied the allegations in the plaint and filed a written statement contending that the suit is not maintainable, the 1^st plaintiff's lodge, Hotel Residency is running from 06.08.1991. The allegations that the 1^st plaintiff was recei