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Judgment
E. Padmanabhan, J.—The defendant in O.S. No. 469 of 1989 on the file of the XV Assistant Judge, City Civil Court, Chennai, who had
lost before the two courts below is the appellant in this Second Appeal. This Second Appeal is directed against the judgment and decree of the
learned principal Judge, City Civil Court, Chennai dated 30.11.1992 made in A.S. No. 152 of 1992. At the time of admission the following
substantial question of law was framed for consideration:
Whether the Appellate Court is entitled to grant the relief of declaration of the right of easement of light and air to the respondent without any proof
of acquisition of easementary right of light and air u/s 15 of the Indian Easements Act, 1882?
Apart from the said question of law, the learned counsel for the appellant raised various other contentions which are all substantial questions
according to him and submitted detailed arguments.
It is the attempt on the part of the learned counsel for the appellant to persuade this Court to interfere with the findings of the two courts below
as according to the learned counsel the two Courts below have failed to consider the advert material portion of the evidence, their appreciation of
evidence is perverse and that they have not applied the correct principles of law.
Per contra, Mr. A.B. Sampath Kumar, the learned counsel for the respondents contended that no interference is called for with respect to the
judgment and decree of the two Courts below.
Heard Mr. P.K. Sivasubramanian, for the appellant and Mr. A.B. Sampathkumar for respondents 1; For convenience, the parties will be
referred as arrayed before the trial Court.
The plaintiffs instituted the suit O.S. No. 469 of 1989 seeking for the following relief''s:-
(a) for a declaration that the plaintiffs are entitled for light and air in the schedule mentioned property;
(b) for a permanent injunction restraining the first defendant, his agents, servants or anybody else claiming through or under him from in any manner
obstructing the light and air through the windows and ventilators and openings on the northern side of the plaintiffs'' property bearing door No. 8,
Mannar Reddy Street, T. Nagar, Chennai-17 and more fully described in the Schedule hereunder either by putting up any construction or by any
other means;
(c) for a mandatory injunction against the defendants to demolish the unauthorized construction on the northern side compound wall of the
plaintiffs'' property bearing door No. 8, Mannar Reddy Street, T. Nagar, Madras-17 as set out in the sketch annexed thereto.
According to the plaintiffs they are the absolute owners of the house ground and premises bearing door No. 8, Mannar Reddy Street, T. Nagar,
Chennai, which they have purchased on 30.10.1981, that the plaintiffs and their predecessors have been in possession of the suit property for over
twenty years, that the plaintiffs'' property is located on the southern side of the property bearing Door No. 9, Mannar Reddy Street, owned by the
first defendant having a passage of eight feet on the eastern side leading to Mannar Reddy Street, that Door No. 9, Mannar Reddy Street consists
of a Building and a vacant space on the south eastern and western sides, that the first defendant commenced additional construction on the vacant
site on the southern side of his premises during October, 1988, that the additional construction has been built quite flush to the plaintiffs'' premises
to a length of 60 feet east to west and to a length of 12 feet, east to west leaving only a space of two feet, that such a construction is contrary to
the Building Rules, that the plaintiffs'' have sent objections to the defendants and representation about the unauthorized construction, that the
defendants 2 and 3 have not taken any steps, emboldened by the inaction on the part of the defendants 2 and 3, the first defendant proceeded
further with the construction on his land, that the unauthorized construction completely obstructed the air, light to the plaintiffs building through the
windows, ventilators and opening on the northern side, that on account of the said unauthorized construction of the first defendant the walls being
built quite flush with the plaintiffs'' northern side compound wall, the rain water will seep through and cause damage to the plaintiffs'' wall and
therefore the plaintiff is entitled to the relief of declaration prayed for and for permanent injunction as well as mandatory injunction prayed for in the
suit.
The first defendant filed a detailed written statement denying the entire plaint averments and disputed the claim of the plaintiffs that they have
been enjoyment of the suit property as well as their claim of receiving normal light and air, that the defendant after his purchase secured the
sanction from the defendants 2 and 3 and made alteration by way of additional construction on the southern side within the boundary limit of his
property, that the existing building put up by the plaintiffs is well within the Compound, that the construction raised by the first defendant will in no
way obstruct the light and air of the property of the plaintiffs, that there are no openings by way of, apertures in the boundary wall of the plaintiffs''
property, that the plaintiffs have not claimed any easementary right of light and air, that in the absence of such a claim, the plaintiffs are not entitled
to seek the relief of declaration, that the construction put up by the first defendant is in accordance with the Building Rules and necessary sanction
had been obtained, that the defendant had put up construction leaving sufficient space as per the Regulations, that the defendant had not put up any
unauthorized constructions, that the plaintiffs'' right to light and air through the existing windows or ventilators or openings is not being interfered
with and such a claim is purely imaginary and totally false, that the suit has been-filed with ulterior motives to restrain the defendants from putting up
construction, that the defendant has already completed the construction and that the plaintiffs are not entitled to mandatory injunction directing the
defendant to demolish the construction in the property and it is for the statutory authorities to take action for violation, if any.
The third defendant had filed a written statement contending that the dispute is between the plaintiff and the first defendant, that the Chennai
Corporation is the authority under the Madras City Municipal Corporation Act to take action against any unauthorized construction and that the
plaintiffs are not entitled to any relief.
Pending the suit a Commissioner was appointed to inspect and file his report. The plaintiffs examined himself as P.W. 1 and one M.K.
Srinivasan as P.W.2. The plaintiffs marked Ex. A.1 to A.7 while the defendants marked Exs. Bl to B.4. The Trial Court framed three issues. After
contest, the trial Court granted the relief of permanent injunction forbearing the defendants from putting up any construction close to northern wall,
besides the grant of mandatory injunction directing the defendants to remove the offending unauthorized construction put up adjacent to the
northern compound wall and granted two months time to remove the same. The Trial Court did not grant the relief of declaration.
Being aggrieved, the first defendant preferred A.S. No. 152 of 1992, while the plaintiffs preferred cross objections to the said appeal. The first
appellate Court dismissed the appeal filed by the first defendant and modified the judgment and decree of the trial Court, while allowing the cross
objections in part. As later the judgment and decree of the first appellate Court, the relief of declaration has been granted in favour of the plaintiffs
holding that the plaintiffs are entitled to receive light and air, and mandatory injunction was also granted directing the defendants to remove the
construction put up over the northern compound wall on or before 30.1.1993 and the unauthorized construction put up by the defendant has to be
demolished by the defendant.
The learned counsel for the appellant contended that the plaintiffs are not entitled to the relief of declaration with respect to light and air in the
absence of any specific plea put forward by them in the evidence. It was further contended that when admittedly there are no apertures or holes or
window on the defendant''s property and when the plaintiffs'' property is located away from the boundary limits of defendant''s property and when
there is no diminution in the light and air which the plaintiffs have been receiving through the available open space, as well as the balcony, the two
Courts erred in law in granting the relief of mandatory injunction.
It was further contended that the plaintiffs are not entitled to the relief of mandatory injunction as the construction had already been completed
in accordance with the sanctioned plan. It was also contended that the defendant has no obligation to put up construction according to the desire of
the plaintiffs, nor the defendants had the legal obligation to comply with the Building Regulations.
Mr. P.K. Sivasubramanian further contended that the plaintiffs are not entitled to equitable relief of mandatory injunction u/s 39 of the Specific
Relief Act as the plaintiffs acquiesced themselves in the construction put up by the defendant and there is no justification to grant the relief of
mandatory injunction for demolition of the building put up by the defendant very much inside his property, and at any rate, damages if any, should
have been awarded instead of mandatory injunction directing for demolition of the offending construction. It was further contended that the
exercise of discretion by the two Courts below in granting mandatory relief of injunction is contrary to law and settled legal position and authorities
and therefore the judgment of the two Courts below are liable to be reversed.
The learned Counsel for the appellant contended that no substantial injury has been proved and there is no diminution of light and air and the
plaintiffs have no right to natural flow of air from the defendant''s property, whether such a right had been established or proved. It was contended
that the construction put up by the defendant is as per the approved plan and there is no deviation or unauthorised construction. Therefore, the
relief of mandatory injunction granted by the Courts below have to be set aside and for removing the unauthorized construction no mandatory
notice can be granted at the instance of the plaintiffs and that too when the plaintiffs had kept silent and have acquiesced themselves with the
alleged construction and therefore mandatory injunction for removal of completed construction ought not to have been granted by the Courts
below.
The learned counsel for the appellant further contended that at any rate mandatory injunction ought not to have been granted as pecuniary
compensation is adequate. The learned counsel for the appellant/first defendant relied upon a Full Bench judgment of the Orissa High Court in
Krushna Kishore Bal Vs. Sankarsan Samal and Others, in support of his contention that men; violation of municipal plan or rules is not actionable
per se unless a real injury is established by the person in whose interest and for whose protection the rules are framed. The Full Bench of the
Orissa High Court held thus:-
Law is thus well settled that mere violation of municipal rules or plan is not actionable per se unless an injury, real or apprehended, is established by
the persons in whose interest and for whose protection the rules are framed. The Act and the rules create an obligation in favour of the plaintiffs if
they prove such injuries which would be determined according to the facts and circumstances of each case.
The learned Counsel for the appellant also relied upon the Division Bench Judgment of the Calcutta High Court reported in AIR (39) 1952
Calcutta 364 (Parulp Bala Roy v. Srinibash) and contended that in order to obtain order of decree for injunction, there must be an invasion or
threatened invasion of the plaintiff''s right to or enjoyment or property and simply because the plaintiffs right is rendered less beneficial that would
not entitle him to obtain an injunction unless he can show that there was a legal duty on the part of the defendant towards the plaintiff. The Division
Bench of the Calcutta High Court held thus:-
The third para deals with the breach of obligations other than obligations arising under a contract. In order to entitle the plaintiff to obtain an
injunction, there must be an invasion or threatened invasion of the plaintiffs'' right to, or enjoyment of property. The word ""invade"" indicates the
breach of an obligation on the part of the defendant, that is to say of a duty on the part of the defendant which is recognized by law, nor merely a
moral or religious duty. Where the breach or the threatened breach of an obligation other than a contractual obligation to the plaintiff is made the
subject matter for a suit for perpetual injunction not merely by proving the legal duty on the part of the defendant towards the plaintiff which has
been broken or threatened with breach but also by proving any one of the conditions mentioned in Clauses (a) to (c) to exist. In this case therefore
the first question which will have to be considered is what is the nature of the legal duty which the appellant owed to the plaintiffs.
Mr. P.K. Sivasubramanian further relied upon the Division Bench Judgment of the Calcutta High Court reported in Lalit Mohan Mitra and
Others Vs. Samirendra Kumar Ghosh and Others, and contended that the construction by the defendants as per the sanctioned plan and in the
absence of contractual obligation between the plaintiff and the defendant, the construction duly sanctioned by the local authority and not being a
violation of the Statutory Rule would not amount to actionable nuisance and the plaintiffs in the present suit have no right or cause of action against
the defendants and seek the relief of injunction. The Division Bench of the Calcutta High Court held thus:-
In the next place Mr. Mukherjee contends that the defendant has obligation only to the Corporation and not to the plaintiffs. If the defendant''s
makes construction in violation of the sanctioned plan then it is for the Corporation to start action against the defendant. The plaintiff cannot come
to Court only for the simple reason that the plan has not been sanctioned properly by the Corporation and the defendant is making construction in
violation of the plan. In support of the contention Mr. Mukherjee refers to a decision reported in: AIR 1952 Calcutta 74, (Nandlal Ladia v.
Provudayal Tikriwalla). In this case on the facts it was held that ""where the plaintiffs and the defendants are adjoining owners, the plaintiffs have no
right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that certain proposed construction on the defendant''s
land may be in breach of Municipal Rule and bye-laws. There is no obligation contractual or otherwise, on the part of the plaintiffs towards the
defendants which requires that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations.
Mr. Mukherjee submits that in the present case also there is no contractual obligation between the plaintiffs and the defendant and as such even
assuming that there was violation on the part of the defendant, the plaintiffs cannot only for that bring an action against the defendant and pray for
injunction. Mr. Mukherjee also refers to another decision reported in Parul Bala Roy Vs. Srinibash Chowmal and Others, . In this case it was held
In order to entitle the plaintiff to obtain an injunction, there must be an invasion or threatened invasion of the plaintiff''s right to or enjoyment or
property. Simply because the enjoyment of the plaintiff is rendered less beneficial that would not entitle him to obtain an injunction unless he can
show that there is a legal duty on the part of the defendant towards him and that by non performance of that legal duty the enjoyment of his
property is materially affected"". Mr. Mukherjee contends that in this case it cannot be said that there was any legal duty on the part of the
defendant towards the plaintiff and that as there was a breach of that duty the plaintiff can start an action praying for injunction.
Mr. Mukherjee''s last point is that even assuming that by proposed construction, there will be some diminution of light and air as enjoyed by the
plaintiff even then the plaintiff is not entitled to get an order of injunction unless the defendant''s action amounts to actionable nuisance. In support of
this contention Mr. Mukherjee refers to a decision reported in 41 LA. 180 = (AIR 1914 PC 45 = 1 L.W.561.), Paul v. Robson. In this case it
was laid down ""The owner or occupier of a tenement in respect of which an easement of light has been acquired by prescription is entitled to a
quantity of light the measure of which is what is required for the ordinary purposes of inhabitancy of business of the tenement, according to the
ordinary notions of mankind. The actual user will neither increase nor diminish the light. The question, in an action for obstruction, is whether the
obstruction amounts to nuisance"". It is not the case of the plaintiff that the proposed obstruction would amount to nuisance. No issue was raised in
this respect in the Court below though the number of witnesses have been examined by the plaintiff no evidence had been laid to this effect.
Mr. Manindra Nath Gosh, learned Advocate appearing on behalf of the respondents relies on a decision reported in 68 Cal W.N.757 = AIR
1965 Cal 149, (Krishna Kali Mallik v. Babutal Shaw). In this case it was held ""Under the Calcutta Municipal Act there is a duty to construct
buildings in accordance with the terms of the statute and a duty not to construct buildings in violation of the statute. The purpose of the statute as
also the terms thereof will show that building rules have been designed for the protection of rights and interests of persons who are the adjoining
owners. It is indisputable that infraction of light and air or any other kind of actionable nuisance will give rise to a right of action against infringing
landowner or owner of the building. We have gone through the judgment carefully and we do not find how the principle laid down in this case helps
the plaintiffs rather it supports the contention advanced by Mr. Mukherjee that unless the defendant''s act amounts to actionable nuisance the
plaintiffs cannot start an action.
Mr. P.K. Sivasubramanian, also heavily relied upon the Division Bench Judgment of the Bombay High Court in AIR 1929 Bombay 368
(Bhimaji v. Yeshvant) and contended that to constitute actionable obstruction of ancient light entitling a person to obtain mandatory injunction it is
incumbent on that person to demonstrate or to prove that substantial deprivation or the occupation is rendered discomfortable and not merely of
imaginary obstruction. It was also contended that when the delay on the part of the plaintiff amounts to acquiescence, the Court below ought not to
have granted the relief of mandatory injunction. The Bombay High Court held thus:-
In Jamnadas Shankarlal v. Atmaram Harjivan (1) it was held that re-erection of his house by the defendant notwithstanding notice from the plaintiff,
so as to darken some of the principal rooms of the plaintiffs housed making them unfit for occupations during the day without artificial light, is an
injury cannot be adequately redressed by an award of damages, and against which the Court will grant relief by issuing a mandatory injunction
directing the defendant to pull down so much of the house as is necessary to stop the injury. In Ghanasham Nilkant v. Morba Ramchandra (2) it
was held that though the plaintiffs light had been sensibly diminished by the defendant''s new building, there had not been such a large, material and
substantial damage as to require interference by injunction, or that the plaintiff''s room had been rendered unfit for the purpose for which it might
reasonably be expected to be used. To the same effect are the decisions in the cases of Kalliandas v. Tulsidas (3) and Framji Sharpurji v. Framjo
Edulji (4) In Colls v. Home and Colonial Stores, Ltd., (5) it was held that to constitute an actionable obstruction of ancient lights it is not enough
that the light is less than before. There must be a substantial privation of light, enough to render the occupation of the house uncomfortable
according to the ordinary notions of mankind and in the case of business premises, to prevent the plaintiff from carrying on his business as
immediately as before At.204 Lord Davey observes:
According to both principle and authority, I am of the opinion that the owner or occupier of the dominant tenement is entitled to the uninterrupted
access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or
business of the tenement according to the ordinary notices of mankind, and that the question for what purpose he has thought fit to use that light, or
the mode in which he finds it convenient to arrange the internal structure of his tenement does not affect the question. The actual user will neither
increase nor diminish the right.
In Jolly v. King (6) Lord Loreburn observed (p2):
The law on this subject has been laid down in this house in the case of Colls v. Home and Colonial Stores Ltd., (5) and I understand it to be as
follows. He does not obtain by his easement a right to all the light he has enjoyed. He obtain a right to so much of it as will suffice for the ordinary
purposes of inhabitancy or business according to the ordinary notions of mankind, having regard to the locality and surroundings. That is the basis
on which the decision of this house proceeded.
Both the cases were fully discussed by the Privy Council in a later decision in Pauls. Itonsob (7), where it was held that the decision in Jolly''s case
(6) is an authoritative exposition of the decision in Coil''s case (5) and that the law formulated by Lord Davey is the law laid down by the decision,
viz., that the owner of a dominant tenement does not obtain by his easement of right to all the light he has enjoyed during the period of prescription
but obtains a right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the ordinary notions of mankind
having regard to the locality and surroundings, and that there is no infringement acquired by ancient lights unless that which is done amounts to a
nuisance.
The learned Counsel for the appellant also contended that when the plaintiffs and the defendants being adjoining owners and when the plaintiffs
have no right to pray either for a mandatory injunction or for a perpetual injunction merely on the ground that certain proposed construction on the
defendant''s land may be in breach of municipal rules or by-laws, there is no obligation contractual or otherwise cm the part of the defendants
towards the plaintiffs, which requires that the defendants should construct on his own land in accordance with the municipal rules and regulations
and therefore the suit itself is not maintainable.
The learned counsel relied upon the decision of the Calcutta High Court in Nandalal Ladia v. Provudayal Tikriwalla (AIR(39) 1952 Calcutta
74), where the Division Bench held thus:-
(6) Under Ss. 54 and 55, Specific Relief Act, the plaintiffs may pray for a per; Hual or mandatory injunction to present the breach of an obligation
existing in favour of the plaintiffs. In the present case there was no obligation contractual or otherwise, on the part of the plaintiffs towards the
defendant which required that the defendant should construct on his own land in accordance with the Municipal rules & regulations. The plaintiffs
therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on
the defendant''s land may be in breach of Municipal Rules & By-laws.
Mr. Chatterjee relied on the cases of In Re Lakshmimoni Dassi 45 C.W.N.401.
That was, however, a case where an application for a Writ of Mandamus, was made in this Court. Such an application may be directed only
against the holder of a public office & not against a private individual. The question whether a suit lies ""against"" an adjoining or neighbor ring owner
did not directly arise. The question which was debated was whether an adjoining or neighboring owner was a person whose property franchise or
personal right would be infringed.
In the light of the above pronouncement, the learned counsel for the appellant contends that the judgment and decree of the two courts below
have to be set aside and that the entire suit has to be dismissed in its entirety. Per contra, Mr. A.B. Sampathkumar relied upon the decision of this
Court in (1913) Madras Weekly Notes 183, Tumula Paddaya v. Koppula Chinna Appauna, and contended that there is no justification to deny
the. relief of mandatory injunction. The learned counsel relied upon the following passage:-
It is quite possible for the court to come to the conclusion, in the circumstances of any particular case, that the plaintiffs conduct might be taken to
show that the plaintiff was content with an action for damages but afterwards changed his mind to ask for a mandatory injunction and the Court
might, in circumstances where a waiver of a right to a site might be inferred in substitution for a claim for a damage, refuse a mandatory injunction.
On the other hand, it would be a dangerous doctrine to lay down that a person by unlawfully trespassing on another''s land might, if sufficiently
diligent to complete his unlawful act before a suit could be instituted, successfully maintain that a mandatory injunction could not be granted.
This would put a premium upon deliberate defiance of other person''s rights of property and would enable a person to compulsory acquire
property belonging to another if his unlawful act is accompanied with promptness in completing it. The English decisions are favorably inclined in
the matter of granting mandatory injunctions when the lawful act does not merely obstruct proper enjoyment of plaintiffs right of property, as by
interference with light and air, but is calculated to deprive him of the property itself see Goodson v. Richardson (1) which was follows in Marriot v.
East Grimstead Gas and Water company (2). The Law on the subject has been summarised in Kerr on injunctions, pages 32, 33 and 34. It is clear
from Kerr''s summary that even where there is some delay in the institution of the suit and damages might be sufficient compensation, the Court has
always a discretion to grant a mandatory injunction, if in all the circumstances of the case, it is of opinion that justice between the parties requires it.
The learned counsel for the respondents also relied upon the decision of the Andhra Pradesh High Court reported in (1970) 2 Andhra Law
Times 183, (Yeshoda Bai v. Yeloji Rao) in support of his contention that the plaintiffs are entitled to receive light and air which right is apparent
and continuous and necessary for enjoying the very property as it was enjoyed when they purchased the property.
The reliance placed by the counsel for the respondents/plaintiffs on (1970)-2-Andhra Law Times 183 will be of no assistance to the counsel
for the plaintiffs/respondents as in the said case the enjoyment and unauthorized construction was by the defendant by encroaching on the plaintiffs
property and in that context, the question of acquiescence was considered. This is not the case here. The decision of the Andhra Pradesh High
Court also will have no application to the facts of the present case and the contention raked by the counsel for the respondents/plaintiffs do not
deserve consideration any further.
Admittedly the plaintiffs became the owners of the property bearing Door No. 8, Mannar Reddy Street, and the same was purchased by the
plaintiffs only on 30.11.1981. But the suit came to be instituted in the year 1989. It is true that the plaintiffs have sent representations or complaint
as seen from Ex. A.1 dated 7.11.1988 and A.R. dated 9.11.1988 complaining about the construction put up by the first defendant on the suit
property.
The question whether the first defendant put up construction in violation of the Building Rules or Regulations requires consideration. No
evidence has been placed before the Courts below that the defendants construction was in violation of any Building Regulations or statutory rules.
It is ago to be pointed out that the defendant had not put up any construction over the dividing compound wall.
In fact as seen from the Commissioner''s plan and report, the defendant had not put up any construction over the dividing compound wall or
immediately north of the compound wall. Admittedly, the plaintiffs'' house is located on the-rear side of the first defendant''s house and the plaintiffs
have to reach their house through the eight feet passage from Mannar Reddy Street to reach their house. The plaintiffs'' and the first defendant''s
house is divided by the compound wall and the east west length of the compound wall is 60 feet It is not the case of the plaintiffs that the first
defendant had put up any construction on the compound wall or adjacent to the compound wall. The new construction with respect to which
complaint has been made by the plaintiffs is definitely away from the Compound wall and still inside the first defendant''s house.
The Commissioner appointed by the trial Court submitted his report and plan and they have been marked as exhibits. Door No. 8, Mannar
Reddy Street as already pointed out belongs to the plaintiffs while Door No. 9, Mannar Reddy Street belongs to the first defendant. The
Commissioner has reported that the building on the southern side is constructed at a point, which is about 1 foot 9 inches away from east to west
Compound wall of premises No. 8 and it widens to two feet 9 inches. However it is pointed out that at a juncture the wall of the said building is
built adjacent touching the compound wall of premises No. 8 and it extends to a stretch of 16 feet 3 inches.
Nowhere, the Commissioner had in his report referred to the alleged diminution of light and air in the plaintiffs'' property, nor there is an
attempt on the part of die plaintiffs to establish that there has been reduction or diminution of usual light and air which the building is receiving.
There is a lot of space in between the east west compound wall and the main building put up by the plaintiffs on their side. There is no opening on
the plaintiffs'' building towards the south.
P.W.2, one M.K. Srinivasan, an Engineer had been examined on the side of the plaintiffs. According to P.W.2, Door No. 9 is a new
construction, that when he visited on 4.1.1989 the first floor was being constructed and in 1991 the second floor had been constructed. P.W.2
admitted that he does not know whether the construction put up by the defendant is unauthorized and he does not know whether the first
defendant had secured necessary permission for additions and alterations. Nowhere P.W.2 who claims to be an expert Engineer nor stated that
after the construction there had been dimidiation of light or air into the plaintiffs property, which the plaintiff was receiving normally hitherto.
Admittedly hitherto there is no window facing the defendant''s side.
P.W.I namely the first plaintiff admits that his wife purchased the property on 30.10.1981, that the superstructure is in existence for over 20
years, that he has also put up construction as per the sanctioned plan ExA.7, that there exists two windows on the northern wall. P.W.I has simply
denied the suggestion that there is any diminution in the natural tight and air which the plaintiffs have been hitherto enjoying. It is to be pointed out
that P.W.I did not elaborate or not even deposed that there has been diminution of light and air which the plaintiffs have been receiving and except
stating that the construction by the first defendant is unauthorized, P.W.I is unable to state prejudicial effect of such construction by the first
defendant on the suit property, nor he had deposed anything about the diminution of mamool light and air, which he had been receiving hitherto.
The defendants produced Ex.B3, a Building Plan showing the approval for additional and alteration to the existing building on the defendants
property. Therefore it follows that the first defendant had obtained sanction. Ex.B.4 is also a sanction plan marked by the defendant with respect to
the proposed addition to the existing building at Door No. 9, Mannar Reddy Street. It follows that the first defendant had secured approval of
necessary, requisite plan from the local authority for the addition and alteration put up by the first defendant and it is not as if either the original
construction or the addition or the alteration is without a sanction or approval of the local authority. The hue and cry made by the plaintiffs that the
defendant had put up construction or alteration without sanction of the local authority cannot be sustained and only on that score the plaintiffs had
approached the courts below seeking the relief''s of declaration as well as mandatory injunction.
When once the first defendant had established that he had obtained a sanction and plan, it cannot be said that the construction put up by the
first defendant is unauthorised or illegal. For deviation, if any, it is always open to the defendants 2 and 3 either to approve with the modification or
to take action. On that score the plaintiff cannot seek the relief of mandatory injunction as has been held by the Division Bench of the Calcutta High
Court in Lalit Mohan Mitra and Others Vs. Samirendra Kumar Ghosh and Others, . The two courts have proceeded on the basis that the plaintiffs
had put up construction unauthorisedly and therefore the offending construction, has to be removed. Such an approach cannot be sustained.
The second plaintiff is a recent purchaser. The plaintiffs had not examined their vendors or any other expert witness to show what is the
quantum of light and air they have been normally receiving inside their building. Further, admittedly, there is no window or apertures on the side of
the plaintiffs building facing the defendant''s property. That being so, the plaintiffs cannot complain that there is diminution in light and air which they
have been enjoying or prescribed. No such plea finds a place in the plaint. Except mere assertion that there is diminution of light and air in Para 6
of the plaint, no evidence had been let in by the plaintiffs and the two courts below have proceeded on the assumption that there is diminution in the
usual flow of light and air. But without plea and any evidence, the assumption and surmises made on the part of the two Courts below vitiates their
conclusions.
There was no attempt on the part of the plaintiffs to show that consequent to the defendants putting up construction, there had been diminution
of light and air inside the plaintiffs'' house. As already pointed out, there is no window or apertures or openings in the plaintiffs house facing the
defendants house. If that be so, merely because the defendant had deviated and put up a construction inside his property and the same being well
within the boundary, the plaintiffs cannot complain the reduction of light and air.
In city life, constructions have grown vertically and space has become scarce and therefore adjacent owners do not depend upon others for
light and air. In the present case the plaintiffs or the defendants as the case may be do not depend upon natural flow of light and air, but they
depend upon artificial tight instead of vertical flow of light and air. On a perusal of evidence of P.Ws, 1 and 2 it could be seen that nothing has
been, established to hold that the defendant''s additional construction has resulted in diminution of air or light to die plaintiffs'' property. In the
absence of interference with the usual flow of light and air, the plaintiffs have no cause of action, nor they, could restrain the defendants from putting
up any construction within the defendant''s limit / Assuming that there has been a deviation from the approved plan, it has not been established that
the defendants by such deviation have caused obstruction to die free flow of air and light into plaintiffs'' property.
The plaintiffs being recent purchasers not having established prescribed or easementary right to light and air by being in possession and
enjoyment for over it statutory period cannot complain that the defendants had interfered with usual flow of light and air. The plaintiffs being
purchasers of the year 1981 and having filed the suit in 1989, cannot claim that they have prescribed a right of easementary right of tight and air.
It has not been established that the defendants have reduced the natural air and light b� their putting up additional construction inside their
land and within the compound. Even aiming that the defendants had put up the construction very close to the compound, while such a construction
is well with Bi the first defendants land and such a construction was admittedly not on the dividing line or on the compound. It is not as if the
construction along the compound wall is a new construction, but the defendant''s main building has been in existence for quite some time and only
addition or alteration has been undertaken as seen from Exs.B3 and B.4.
Further, the plaintiffs have kept silent till the first floor was completed. That being a factual position. It is not open to the plaintiffs to complain
about the construction or the alteration put up by the first defendant alter completion and more so, when the plaintiffs have not provided for any
window or apertures in that direction, nor it has been established that the plaintiffs have beep receiving the quantum of light and air from that
direction or diminution thereof. In the absence of interference of the easementary right to light and air, it is not open to the plaintiffs to contend that
there is interference and the plaintiffs are entitled to the relief''s of declaration and mandatory injunction.
It is needless to point out that it is always open to the defendants 2 and 3 to take suitable action under the statutory provisions if there is
violation of the building plan and said authorities who are public authorities will definitely take action for violation of building rules or plan for
deviation from the approved plan. The two courts below have proceeded on the assumption that the construction put up by the first defendant is
unauthorised and as if the offending construction is on the compound wall and that it had interfered or diminished the light and air, which the
plaintiffs were receiving hitherto. There is no reason or basis to draw such inference and the assumption by the two courts below is not warranted
on the facts of the present case.
In the foregoing circumstances, in the light of the pronouncements referred above, this Court holds that the judgment and decree of the two
Courts below are liable to be set aside. This Court is conscious that sitting in Second Appeal, normally it will not interfere with the concurrent
findings. In the present case, the two courts have proceeded on erroneous assumptions and their appreciation of evidence is neither fair nor
balanced. The two Courts have proceeded as if there'' is no approved plan and the construction is an unauthorized construction without a sanction.
So also the remodeling was without any sanction or approval.
The two Courts below have lost sight of the crux, namely the plaintiffs have not proved the deprivation or diminution of the light and air which
they have been hitherto receiving from the defendant''s side by the alleged offending construction. Further, the plaintiffs have not established their
right to casement of light, nor they have prescribed the same and they being purchaser only from 1981, they have not established that either they or
their vendors/predecessors-in-title as well have been receiving light and air through the defendant''s property for over a statutory period and the
same is said to be interfered by the alleged construction or deviation by the first defendant,
The plaintiffs are not entitled to the relief''s of mandatory injunction to demolish the construction put up by the first defendant as the plaintiffs
had kept silent and they have also not established that by such construction by the defendant the usual light and air to the plaintiffs property had
been deprived or resulted in any nuisance, much less actionable nuisance. Therefore, it follows that the plaintiffs are not entitled to the relief of
mandatory injunction.
However, it is made clear that the first defendant shall not put up any further construction in between his house and the plaintiffs'' house and
shall not interfere with the usual light and air which the plaintiffs have been receiving pending the suit and subsequently as well by putting up any
further construction.
There will be a decree in favour of the plaintiffs forbearing the first defendant from putting up any further construction here-afterwards as the
learned counsel for the respondents contends that any further construction by the defendants would cause obstruction to the free flow of natural
light and air flowing vertically into the plaintiffs'' property from the defendant''s side. Only to this extent there will be an injunction and in other
respects the relief''s granted by the two courts below are set aside.
In the circumstances, the substantial question of law is answered in favour of the appellant The Second Appeal is allowed and the judgment
and decree of the two courts below are modified and there will be a decree in favour of the plaintiffs forbearing the first defendant from putting up
any further construction here afterwards close to plaintiffs'' property so as to obstruct free flow of light and air. The parties shall bear their
respective costs throughout.