D.Sureshmul Chordia vs B.Sakunthala Ammal & Anr.

In this second appeal, the judgment and decree dated 22.05.2001 made in A.S.No.104 of 1993 on the file of the Additional District Judge cum

Chief Judicial Magistrate Court, Cuddalore, reversing the judgment and decree dated 31.03.1993 made in O.S.No.206 of 1992 on the file of the

Additional Subordinate Court, Cuddalore, is under challenge.

Parties are referred to as per their rankings in the trial Court.

Suit for declaration and permanent injunction.

The case of the plaintiff, in brief, is that the suit property belongs to the plaintiff by virtue of the sale deed dated 07.08.1966 and after the

purchase, the plaintiff constructed a three storeyed building in 1967 and the said construction was over in 1968 itself and the plaintiff had provided

one window in the ground floor and two ventilators in the backside. In the first floor, he had provided one window and two ventilators in the main

hall and three ventilators in the Verandah and in the second floor, he had provided one window and three ventilators. All these windows and

ventilators are on the eastern wall of the house and and the building faces south in a congested business locality and the main source of light and air

for the building is through the above mentioned windows and ventilators and in the ground floor, the plaintiff ans his son are doing pawn-broker

business and the other two floors are being used for residential purposes. Except this source, there is no other source of light and air and the

plaintiff has been accustomed to the light and air that enter through the above said windows and ventilators on the east for all these years since the

completion of work in 1968 and the light and air received through the above said windows and ventilators is the bare minimum that would be

necessary for a reasonable and comfortable living. As such, the plaintiff has prescribed for such an easement by enjoying above facility for more

than 22 years continuously. The defendants have already constructed the first floor in the front portion adjoining the road and the construction of

the first floor along eastern Wall of the plaintiff was to a certain extent and the defendants are now making preparations for constructing the

remaining vacant space available at the first floor in such a way that it would completely close the windows and ventilators on the eastern wall of

the plaintiff''s house and the defendants are extending the construction by putting up a Kalyana Mandapam and the plaintiff will be put to substantial

damage and injury if the defendants carry on their construction. As the plaintiff had obtained a prescriptive right of light and air through the existing

windows and ventilators and entitled to maintain the same and as the defendants are attempting to proceed with the construction, thereby

hampering the above said prescriptive easementary right of the plaintiff, accordingly, he has been necessitated to lay the suit for appropriate reliefs.

The case of the defendants, in brief, is that the suit is not maintainable either in law or on facts. The plaintiff has already filed a suit in

O.S.No.414 of 1992 on the file of the District Munsif Court, Panrutti, for the same reliefs and pursuant to the same, the plaintiff has laid the

present suit without true facts and hence, on the above ground, the suit is liable to be dismissed. It is false to state that the plaintiff had put up and

completed the construction work in his property by 1968. Only the ground floor was put up by the plaintiff at the first instance and the first and

second floors were constructed much later. The plaintiff is actually residing in the ground floor in the back portion and doing business in the front

portion and not using the first and second floors. It is false to state that the plaintiff is entitled to an easementary right of light and air through the

Windows and ventilators put up by him on the eastern side as pleaded in the plaint for more than the prescribed period and it is false to state that,

that is the main source of light and air for the plaintiff''s property. The defendants purchased the adjacent property and put up the construction in

the ground floor in the year 1983, after demolishing the entire building and constructed six shops comprised in the complex. The defendants have

also put up staircases with the idea of constructing two more floors in future and at the time of construction of ground floor, whatever ventilators

and windows were there were closed. If really, the plaintiff had any easementary right of light and air through the alleged windows and ventilators,

he would have objected to the same at that point of time and the plaintiff had not done so and acquiesced in the construction of the defendants by

not putting forth any resistance. The defendants in 1983 had inserted iron rods so as to extend beyond the plastering work and to serve as a

provision for continuation of construction in future. The plaintiff was fully aware of the defendants'' furture plans and yet he kept quiet. The

defendants are now extending the ground floor northwards and it is false to state that the construction of the defendants is intercepting free access

to air and light for the plaintiff''s property. The light and air received by the plaintiff through the courtyard is more than sufficient and there is an

alternative source of light and air to the plaintiff. The plaintiff has constructed his eastern wall by encroaching upon the defendants'' property and the

plaintiff has not put up construction as per the plan got approved by him and he has committed breach of conditions of construction and therefore,

cannot seek the aid of Court for any relief. The suit is bad for non joinder of the Nellikuppam Municipality and hence, the suit is liable to be

dismissed.

In support of the plaintiff''s case, PWs 1 & 2 were examined and Exs.A1 to A15 were marked. On the side of the defendants, DW1 was

examined and Exs.B1 to B18 were marked. Exs.C1 & C2 were also marked.

On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was

pleased to decree the suit as prayed for. On appeal, the first appellate Court, on a consideration of the materials placed, was pleased to set aside

the judgement and decree of the trial Court and allowing the appeal preferred by the defendants, dismissed the suit laid by the plaintiff. Aggrieved

over the same, the present second appeal has been preferred.

At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:

(i) whether the learned Judge is right in holding that the plaintiff has not acquired any easementary right to receive light and air through

the Eastern side windows and ventilators, when admittedly, the Advocate Commissioner who was examined as P.W.2 has deposed

that the plaintiff has been enjoying the light and air only through the Eastern side Windows and ventilators for the ground floor, first

and second floor also?

(ii) Whether the learned Judge is right in not adverting to the provisions of Sec. 15, 28, 33, 34 and 35 of the Indian Easements Act,

1882?

(iii) Whether the learned Judge is right in holding the present suit is hit by the provisions of Order 2 Rule 2 of CPC, when admittedly,

the earlier suit O.S.NO.414 of 1992 filed on the file of D.M.C Panruti for the identical relief has been dismissed as withdrawn?

According to the plaintiff, he has put up construction in his property by 1968 and at the time of construction, he has fixed Windows and

ventilators on the eastern wall of his property in the first floor and second floor and thereby, receiving light and air through the said Windows and

ventilators and accordingly, he has prescribed his right to receive light and air through the said windows and ventilators by prescription and the

same cannot be hampered with by the defendants and according to the plaintiff, the defendants are now making steps to put up construction in the

first floor of their property and while doing so, are attempting to obstruct the free passage of light and air through the windows and ventilators fixed

on the eastern wall of the plaintiff''s property and thereby, preventing the plaintiff from enjoying his prescriptive easementary right to receive the

light and air through the said windows and ventilators and hence, the suit for appropriate reliefs.

The defendants have taken a plea that the plaintiff has not put up the construction in his property as per the approved plan and hence, on the

above said ground alone, the plaintiff has to be non suited. Further, according to the defendants, the plaintiff has not prescribed any right to receive

light and air through the windows and ventilators as pleaded by him and hence, on the above ground also, the plaintiff has to fail. Further, according

to the defendants, the defendants have put up their construction in their property during 1983 itself and at that point of time, the plaintiff had not

offered any resistance to the same and hence, the question of the plaintiff''s acquiring right by prescription to the passage of air and light through the

windows and ventilators does not arise. Further, according to the defendants, the plaintiff has failed to establish that the defendants are putting up

construction in the property so as to prevent the passage of air and light to his property and hence, the suit is liable to be dismissed.

The courts below, on an appreciation of the materials placed, have held concurrently that the plaintiff had put up the construction of three

storeyed building in his property during the period from 1967 - 1969. The above said determination being a question of fact, which has been rightly

determined by the Courts below, I do not find any reason to interfere with the above said determination of the Courts below in support of the

plaintiff''s case.

The main question that has to be determined in this case is whether the plaintiff has prescribed his right to receive the light and air through the

windows and ventilators situated on the eastern wall of his house as claimed in the plaint. According to the plaintiff, he has been continuously

receiving the light and air uninterruptedly through the said Windows and ventilators for more than statutory period of 20 years and hence, the same

could not be interfered with by the construction put up by the defendants in their property and hence, the suit.

It is found that the defendants have purchased their property in the year 1975 and also it is seen that they had put up construction of the ground

floor in the southern portion in the year 1983 and also put up construction of the first floor over a portion of the ground floor on the southern side in

the year 1983 itself. It is seen that the defendants have raised the construction in their property in the year 1983 itself and accordingly, it is further

seen that the defendants have made provisions for putting up staircase so as to continue further construction in their property and accordingly,

inserted iron rods and pillars and the above said construction had been made in the year 1983 itself. It is admitted by the plaintiff during the course

of his evidence that the above said construction had been put up by the defendants in their property during 1983 itself. Now, according to the

defendants, the plaintiff has not been receiving the free passage of light and air through the alleged windows and ventilators continuously over the

statutory period and the defendants'' construction in the year 1983 has caused an obstruction to the above said alleged right of the plaintiff to

receive air and light through the windows and ventilators in the eastern wall and hence, the case of the plaintiff that he has prescribed his right to

receive of right and air under Section 15 of the Indian Easementary Act as such cannot be accepted and hence, the suit should fail.

Further, according to the defendants, the plaintiff has not put up construction in his property as per the approved plan and the plaintiff has

committed various deviations to the approved plan while putting up the construction and in such view of the matter, the plaintiff having not come to

the Court with clean hands is not entitled to seek any relief from the Court as regards the illegal construction put up by him in his property.

The materials disclose that the plaintiff has put up construction in the portion of his property without leaving any space, particularly, on the

eastern side. It is found that as rightly determined by the first appellate Court, the plaintiff''s eastern wall is almost touching upon the portion of the

defendants'' property and on the other hand, it is found that the defendants'' while putting up the construction, has left space on the western side

and hence, it is found that only the defendants had left space while putting up the construction. Now, admittedly, it is found that the plaintiff has not

put up the construction as per the approved plan. In this connection, the plaintiff examined as PW1 during the course of cross examination has

admitted that he has not raised construction in all the floors as per the plan and he has not informed the same to the Municipality and further,

according to the plaintiff, he has obtained approval only for putting up one window on the eastern side and there is no approval for putting up

window on the eastern side other than the window in the hall portion and also admitted that he has put up 5 windows on the eastern side in the first

floor and as per Ex.A2 plan, he has no approval for putting up the windows and despite the same, he has put up the windows and he has also put

up 5 windows in the first floor on the eastern side. Therefore, it is seen from the above said admission of the plaintiff and also the pleas of the

defendants that the plaintiff has raised construction in the property, particularly, put up the windows and ventilators on the eastern side of his

property much against the approval plan and it is thus found that the plaintiff has put up the windows and ventilators on the eastern side on his

property against the approval plan and only in respect of such windows and ventilators, which had put up i.e. in support of the illegal construction

put up by him against the approved plan, he has now knocked the doors of the Court seeking remedy against the defendants. Therefore, as rightly

found by the first appellate Court and also as rightly argued by the defendants'' counsel, when the plaintiff has not put up the construction in his

property in accordance with plan and on the other hand, has deviated the approved plan in all aspects particularly in the fixation of Windows and

ventilators on the eastern side and when the plaintiff had not also informed the same to the Municipality concerned, the plaintiff seeking to enforce

his alleged right in respect of such windows and ventilators for claiming free passage of light and air for more than statutory period as such cannot

be readily accepted. Therefore, it is found that the plaintiff wants to sanctify his illegal actions through the aid of the Court by contending that he has

prescribed receipt of light and air over the statutory period through the said unlawful construction put up by him in the property and this act of the

plaintiff cannot be appreciated and encouraged in any manner. It is therefore found that the first appellate Court has also on that score non suited

the plaintiff and in such view of the matter, no interference could be taken to the same.

Now, come to the question as to whether the plaintiff has prescribed his right to receive the light and air through the alleged Windows and

Ventilators over the statutory period, when it is found that the defendants have put up construction in their property in the year 1983 itself and also

put up the first floor in a portion of the property and also made arrangement for putting up staircase and pillars for putting up further construction in

their property right from 1983 onwards and when it is not the case of the plaintiff that he is not aware of such construction put up by the defendants

at that point of time itself and it is thus found that as rightly argued by the defendants'' counsel, the defendants, by way of the said construction, had

obstructed the free passage of light and air said to have been received by the plaintiff through the Windows and Ventilators during 1983 itself and

despite the knowledge of the same, it is found that the plaintiff had been a silent spectator and not raised his little finger against the said action of the

defendants and therefore, it is seen that the plaintiff having acquiesced to the above said acts of the defendants, when it is seen that particularly the

above said acts of the defendants have obstructed the free passage of light and air through the alleged windows and ventilators of the plaintiff, it is

seen that the plaintiff cannot claim to have prescribed his right to receive the light and air continuously and uninterruptedly well over the statutory

period and hence, it is rightly held by the first appellate Court that the plaintiff has failed to establish that he has prescribed his right to receive the

light and air through the alleged Windows and Ventilators over the statutory period.

However, it is argued by the plaintiff''s counsel that the construction put up by the defendants in their property during the year 1983 as such

was confined to the ground floor mainly and as the said construction did not prevent the passage of the light and air through the windows and

ventilators of the plaintiff in the first floor, it is stated that the plaintiff?s right had not been interfered with and further it is stated that as the plaintiff

had not acquired easementsary right at that point of time, he had not laid the action against the defendants. However, it is found that as per Section

15 of the Indian Easements Act, where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an

easement, without interruption, and for twenty years, the right to such access and use of light and air shall be absolute. However, as to whether the

party had been so enjoying the access and use of light and air to his building continuously without interruption for 20 years and as to the meaning of

the word interruption found in Section 15 of the Act, the explanation appended to Section 15 states that nothing is an interruption within the

meaning of Section 15, unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than

the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person

making or authorizing the same to be made. If the abovesaid explanation is satisfied, it is found that the same would amount to an interruption

within the meaning of the section. Applying the principles outlined in the above explanation to the facts at hand, when it is found that the defendants

have put up construction in their property during 1983 itself and also raised a portion of the first floor at that point of time itself and also made

arrangements to raise further construction in the property, it is seen that the free passage of receiving the light and air, which the plaintiff had been

hitherto receiving i.e. prior to the said construction, had been interrupted by the acts of the defendants in the abovesaid manner, while putting up

such construction and when it is not in dispute that the plaintiff had knowledge about the same during 1983 itself and when the plaintiff has kept

mum without taking action as against the same, it is seen that the plaintiff has submitted to / or acquiesced to the above said construction of the

defendants for more than a year and such being the position, it is found that as rightly determined by the first appellate Court, there has been clear

interruption and interference to the light and air, which the plaintiff had been receiving till that point of time and in such view of the matter, it is found

that the light and air received by the plaintiff had been, at one point of time within the statutory period, interrupted by the acts of the defendants to

the knowledge of the plaintiff and when thereafter, for several years, the plaintiff had not initiated any action with reference to the same, it is found

that the plaintiff cannot claim any easementary right of access and use of light and air to his property by prescription as provided under Section 15

of the Indian Easements Act and in such view of the matter, it is seen that the first appellate Court, has rightly, on proper reasoning and

understanding of the Law and conclusions, non suited the plaintiff holding that he has not prescribed any right to use of light and air to his property

through the Windows and ventilators on the eastern side as put forth by him.

It is further seen that the averments contained in the plaint appear to be misleading and incorrect. The plaintiff has only projected his case as

against the windows and ventilators on the eastern side and the plaintiff has suppressed the existence of windows and ventilators on the otherside

of his property and also the Courtyard portion of the ground floor. It is found that, on materials, the plaintiff has been receiving light and air even

through the windows and ventilators situated on the other side of his property and also through the grill portion fixed in the ground floor and

therefore, the claim of the plaintiff that he had been receiving light and air through his property only through the portion of windows and ventilators

on the eastern side as such cannot be readily accepted and believed. It is further found that the plaintiff has closed two windows of the western

wall for the purpose of fixing Air Conditioner and even thereafter he has remaining windows and ventilators on the western and the other side i.e.

northern side and also getting light and air through the grill portion of the ground floor. Therefore, it is found that the case of the plaintiff that the light

and air received by him through the eastern windows and walls are the main source of light and air as such cannot be accepted in any manner. In

any event, it is seen that when the plaintiff has laid the suit claiming right to receive the light and air only by prescription and when the said fact has

not been established by the plaintiff as discussed above, it is found that the plaintiff cannot be granted the reliefs sought for. Further when it is found

that the plaintiff seeks the above said right in respect of the construction put up by him much against law, it is seen that the plaintiff cannot be

granted the equitable rights sought for in the plaint and hence, it is seen that the first appellate court has rightly rejected the plaintiff?s case.

In support of the plaintiff''s case, the decisions reported in AIR 1968 Andhra Pradesh 151 ( Santhannagari Ramavya and others Vs.

Narasimhapuram Narayana Chetty) and 1999 - 1 - L.W. 630 ( Sundararajan Vs. Jhansi Rani and two others) are relied upon. As far as the first

authority concerned, it is found that when the plaintiff has established his right of easement by way of prescription to receive light and air, the same

cannot be diluted on the footing that the plaintiff has other means of getting the light and air. However in so far as the present case is concerned

when it is found that the plaintiff has failed to establish that he has prescribed the right to receive the light and air over the statutory period it is seen

that the above decision is not applicable to the case at hand as determined by the first appellate court.

It is found that the plaintiff has laid the suit for similar relief at the first instance before the District Munsif Court an d thereafter on the dismissal

of the suit by withdrawal of the same, has laid the present suit in the Sub Court for the same relief. According to the plaintiff''s counsel on the basis

of the pecuniary jurisdiction of the Court, the suit had come to be withdrawn from the District Munsif Court and later, laid in the Sub Court for the

same relief and hence, the suit is maintainable. The above contention of the plaintiff counsel seems acceptable and considering the above said facts,

in my considered opinion the provisions of Order 2 Rule 2 of CPC would not be applicable and therefore, the determination of the first appellate

court that the plaintiff?s suit is hit by Order 2 Rule 2 of CPC is found to be incorrect.

The first appellate Court has rightly determined that the plaintiff has not acquired the easementary right by prescription to receive the light and

air through the eastern windows and ventilators. The commissioner examined by the plaintiff as PW2 has only deposed that the plaintiff had been

receiving the light and air through the eastern windows and ventilators and on the basis of the above evidence of the advocate commissioner, it

cannot be held that the plaintiff has prescribed title to the said right by way of prescription and it is found that the first appellate court has rightly

invoked the provisions of Section 15, 28 33, 34 & 35 of the Indian Easements Act, 1882 and rightly applied the same to the case at hand and

non-suited the plaintiff. Accordingly, the substantial questions of law 1 & 2 formulated in this second appeal are answered against the plaintiff and

in favour of the defendants for the reason afore stated and the 3rd substantial question of law is answered in favour of the plaintiff.

In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently connected miscellaneous petition, if any, is closed.