Harish Chandra vs Nemi Chand

Nisha Gupta, J.�This second appeal under Section 100 CPC has been filed against the judgment and decree dated 8.7.2008 passed by Additional District Judge, Fast Track No. 1, Dholpur in Civil Appeal No. 191/2007 confirming the judgment and decree dated 31.3.2000 passed by Civil Judge (Junior Division) Dholpur, in Civil Suit No. 176/85 whereby suit of the plaintiff for permanent injunction has been decreed and it was directed to demolish the construction raised by the appellant.

The short facts of the case are that plaintiff respondent filed a suit for permanent, prohibitory and mandatory injunction against the appellant with the averments that the disputed house described in the plaint is in ownership and possession of the plaintiff respondent. The construction has been raised in the year 1960 and completed on 30.6.1961. According to permission of the construction, the plaintiff opened 5 ventilators on the Southern wall. The defendant appellant has closed the openings which obstructed the light and air and in 1972 there had been also a compromise between the parties. The plaintiff prayed for the decree. Per contra, the contention of the defendant was that there is no existence of any window or ventilator and he has no easementary right. On the basis of pleadings of the parties, 14 issues have been framed. Plaintiff examined himself and three other witnesses and defendant has also examined himself and other witness. After hearing the parties, the suit has been decreed for mandatory injunction. Appeal was dismissed, hence this second appeal.

The first contention of the appellant is that the court below has not considered the matter in right perspective. Mandatory injunction has been allowed without the pleading and evidence for any substantial injury which has been suffered by the respondent plaintiff and the premises has become inhabitable or of no use and other contention of the appellant is that plaintiff has acquired the ownership of the premises by way of partition in 1972 and he has failed to prove that constructions were raised before 20 years on the day of filing of the suit and he has no right of easement on the day of the suit. Per contra, the contention of the respondent is that both the courts below have concurrently held that the plaintiff has right to easement which has been violated and suit has been rightly decreed and his further contention is that issue No. 11 has specifically been made on this point that whether from any other direction, the respondent is getting light or air and in Issue No. 5, it has been found that respondent is enjoying right of easement from last 20 years and no substantial question of law has been raised, hence the appeal should not be admitted.

Heard the learned counsel for the parties and perused the impugned judgments and decree and also perused the original record of the case.

As regards the substantial damage, the appellant has relied upon Suzan Mal v. Bhanwar Lal & ors., 1984 WLN (UC) 191 ; Chapsibhai Dhanjibhai Danad Vs. Purushottam, ; Mst. Dakhan Bai v. Seth Dhanraj, RLW 1959 pg. 127; Mst. Umrao Kanwar v. Mst. Ram Pyari RLW 1959 pg. 490. There is no dispute about this legal position that the plaintiff has to prove that substantial loss has been caused to him by closure of the windows or the ventilators. Here in the present case, issue No. 11 has specifically been made to the effect that whether plaintiff is getting light or air from any other direction and issue No. 11 has been decided against the appellant and it has also been held by both the courts blow that plaintiff is not getting enough light and air and appellate court has also held that the irreparable loss has been caused and a substantial injury has been suffered by the respondent. In view of the concurrent finding of fact recorded by both the courts below, no substantial question of law has been raised by the appellant in this regard and contention of appellant is not well-founded.

The other contention of the appellant is that respondent has obtained the property by way of partition in 1972 and he has failed to prove that he raised the constructions before 20 years on the date of filing of the suit. In this regard, issue No. 5 has been considered by both the courts below and it has been held that disputed property was earlier government property which was purchased by the appellant and both the courts below were also of the view that in 1960 and 1961, constructions have been raised and a definite finding has been recorded that plaintiff was enjoying the right of easement from 20 years prior to filing of the suit and respondent has relied upon Mahant Saya Ram Das Potra Chela of Mahant Charan Dass v. Lahore Electric Supply Co. Ltd., AIR (29) 1942 Lahore 124; and Jehangirji Jamshedji & ors. v. Nariman Burjorji & ors., AIR 1953 Bombay 318.

Hence, in view of the concurrent findings of fact recorded by both the courts below, no substantial question of law arises in this appeal and the appeal is liable to be dismissed.

The appeal fails and is dismissed.