In Re: Reba Samanta

A.M. Slnha, J.—This revisional application is directed against the judgment and order passed by the learned Addl. District Judge, Twelfth Court, Alipore, in Misc. Appeals Nos. 176 of 1991 and 202 of 1991 which arose from the judgment and order passed by the learned Asstt. District Judge, Ninth Court, Alipore, in Title Suit No. 7 of 1991.

The Plaintiff, opposite party brought the suit for certain declarations which, inter alia, contains a declaration that the Plaintiff acquired an indivisible easement right of enjoying free air and light through and over the land belonging to the Defendant described as B schedule plot of land in the plaint in respect of his own land described as ''A'' schedule of the plaint. The Plaintiff also prayed for permanent injunction restraining the Defendant from making any construction over their B schedule plot of land and for mandatory injunction for demolition of construction which obstructs the passage of free air and light to their land of ''A'' schedule. The Plaintiff is now a private limited company, M/s. K.B. Saha and Sons. The case of the company is that one Kumud Bandhu Saha purchased A schedule land on June 17, 1964, by a registered sale deed from the erstwhile owners measuring 8 cottahs 14 chattaks 36 sq.ft.. The purchaser-in-interest of defenants Nos. 1 to 4, purchased ''B'' schedule land from Defendant No. 5 by a registered sale deed on March 16, 1983. It is alleged that after purchase the Plaintiff company constructed a eight-storyed building and has been in enjoyment of right of easement of light and air in the said building over ''B'' schedule land now belonging to the Defendant. It is further alleged that the Defendant collusively got a plan sanctioned by the Corporation in February 1991 despite the Plaintiffs repeated protest. The Plaintiff moved the High Court in writ jurisdiction and obtained an order of mandamus upon the Calcutta Municipal Corporation who was added as Defendant No. 6 in the suit for making an enquiry and taking appropriate steps in this regard. It is alleged that the Defendant No. 6 has not taken any step. It is stated that in violation of the relevant provision of the Municipal laws and other relevant laws, the Defendant made construction on ''B'' schedule of land to obstruct right of easement of light and air in respect of Plaintiffs building on ''A'' schedule land.

The Defendants Nos. 1 to 4 contended in their written objection that after purchasing ''B'' schedule land and after obtaining due sanction from the Calcutta Municipal Corporation they began raising construction on their land which is a separate premises demarcated with pucca boundary walls on all sides. They have asserted that they have raised the construction in compliance with the sanction accorded by the Calcutta Municipal Corporation. They have collected materials and began construction on their dwelling house over their own land. The Plaintiff, however, after filing the suit obtained an order of ad interim injunction or precisely to say, an order of status quo. They have also applied for temporary injunction in terms of the case made out in the plaint and in support of their prayer for permanent and mandatory injunction. Later, the Defendants Nos. 1 to 4 filed an application under Order 39 Rule 4 of the CPC for vacating and/or modifying the ex parte interim order of maintenance of status quo.

The learned Asstt, District Judge took up the hearing of both the matters, i.e. the Plaintiffs'' prayer for temporary injunction and also the Defendants'' prayer for modification or vacating the order of injunction at the same time.

The learned Asstt. District Judge in his order No. 20 dated May 21, 1991, after hearing the respective contentions of the parties found that the order of the High Court in writ jurisdiction could not affect the right of the Defendants Nos. 1 to 4 from carrying on construction on their land as they are not parties in the writ proceedings and that there is no prima facie case in support of the Plaintiffs application for temporary injunction. He also found the balance of inconvenience in favour of the contesting Defendants Nos. 1 to 4. According to him, the Defendants will suffer irreparable loss and injury if their right to carrying on construction with sanctioned plan obtained by them is stopped as they have at heavy cost collected building materials for the purpose of construction. He futher found that no temporary injunction could be granted in favour of the Plaintiffs as there was no allegation in the plaint that the Defendants Nos. 1 to 4 have committed any mischief or nuisance by raising the impugned construction. According to him, the fact of collusion or illegality could not be decided on the interlocutory stage and could be decided at the time of trial. It was further observed by him that Plaintiff may get his relief asked for if he succeeds in proving his case of acquisition of easement right of light and air at the trial. Accordingly, he rejected the Plaintiffs'' prayer for temporary injunctin and also allowed the prayer of the Defendants Nos. 1 to 4 under Order 39 Rule 4 of the CPC and vacated the ad interim order of status quo.

Being aggrieved by such judgment and order, the Plaintiffs moved in appeal. The learned appellate Court, however, found the case in favour of the Plaintiffs on all points and observed that the impugned construction on the ''B'' schedule plot of land belonging to the contesting Defendants which was contiguous to the south and south-wastern side of the ''A'' schedule property belonging to the Plaintiffs would deprive the Plaintiffs right of enjoyment of free air and light coming through over ''B'' schedule land as has been claimed by Plaintiffs for over 20 years. According to him, if the Defendants are restrained from making any further construction till disposal of the suit, which, should be disposed within 6 months from the date of the appellate order, the Defendants would not suffer any irreparable loss and injury. He held that the injunction prayed for can be granted in interest of justice and the exercise of inherent power of the Court. Accordingly, he set aside the judgment and order of the trial Court and passed the order of temporary injunction restraining the Defendants Nos. 1 to 4 from making any further construction. He also directed the Court below to dispose of the suit on merits within 6 months from the date of the receipt of the order of the appellate Court.

Being aggreived by such judgment and order of the learned Addl. District Judge in appeal, the Defendants Nos. 1 to 4 have come up in revision before this Court.

It has been contended by the Petitioners (Defendants Nos. 1 to 4) who are the revisionists before us that the order of the learned appellate Court is not based on correct appreciation of facts and law governing the issue of temporary injunction in a case of this nature. It is further urged that the finding of the learned appeal Court that the Court can exercise inherent power for the ends of justice and restrain the parties by an order of temporary injunction pending disposal of the suit is erroneous and against the principles of law relating to grant of temporary injunction. They have also assailed the finding of the learned appellate Court that Plaintiffs would be deprived of their easement right of light and air over their land in ''B'' schedule amounted to prejudging of the dispute at the interlocutory stage.

Sri Roy Chowdhury, the Learned Counsel representing the revisionists-Petitioners, has taken us through the pleading of the respective parties and the cases made out by them in their application for temporary injunctions and objections thereto and various documents. He has also addressed us as to the authorities relating to granting of injunction as propounded in authoritative text like Nelson on Injunction and Ker on Injunction.

Mr. A.P. Chatterjee representing the opposite parties in this revision who were the Plaintiffs in the Court below has urged that the sanction accorded by the Municipality and also transfer of the land in ''B'' schedule a part of which belongs to C.I.T. (Calcutta Improvement Trust) is illegal and invalid in view of clear violation of the relevant laws, rules and regulations relating to transfer and sanction of a building plan.

We have heard exclusively the arguments of both sides and perused the relevant papers and documents relied on by both the parties.

After considering the respective contentions of the parties we hold that every prescriptive right to light and its disturbance is not injunctible simply on the prayer of the party. It depends upon the obstruction of such light as is sufficient for the comfortable use and enjoyment of the dominant tenement in a dwelling house or for its beneficial use and occupation and it also depends upon the locality and the environment for determination of the question of injuncting a party from creating such obstruction. It is not every speculative exclusion of light or even sensible diminution of light that gives a right of action, but such a diminution of light as really makes a premises to a sensible degree less fit for occupation or business. See Paul v. Robson 42 Cat 46.

This is a leading case of our High Court as quoted in Law Relating to Injunctions by Woodroffe at p. 287 (Tagore Law Lecture, revised and enlarged edition, 1988, S.C. Sarkar and Sons.)

The host of decisions relied upon by both the sides do not make any exception to the principle enunciated in the judgment quoted above. Mr. Roy Chowdhury, the learned Advocate representing the revisionist has referred to decisions of Smt. Bhulwati Devi and Another Vs. Munna Lal, Nandalal Ladia v. Pravudayal AIR 1952 Cat. 74, Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , Kumuda Sundari Properties (Private) Ltd. and Others Vs. Namdang Tea Co. Ltd., and Lalit Mohan Mitra v. Samirendra Kumar Ghosh 81 C.W.N. 870. The final reduction from all these decisions is the general principle governing, granting of injunction, both temporary and permanent. The Court in giving injunction in favour of any party should consider the existence of a prima facia case, balance of convenience and question of irreparable injury in his favour.

Mr. Chatterjee, on the other hand, has referred to the relevant provisions of Calcutta Thika Tenancy Act and also the provisions of Calcutta Improvement Act and also decisions of Kamala Kanta De v. Radha Ballav Kundu 1980 (2) CLJ. 417, to impress upon the Court that the disputed construction has been started on a land, the part of which was illegally transferred by the Calcutta Improvement Trust and the sanction obtained by the revisionist Petitioner, who are the Defendants in the suit, from Corporation of Calcutta for the alleged construction is on the face of it illegal and invalid as not in compliance with the provision of building Rules and Regulations. He has further urged that sanction of the authority like Corporation cannot cure the nuisance if it is done or attempted to be done by any party raising or creating any obstruction.

In our view, the questions raised by Sri Chatterjee are really questions of fact which cannot be decided in a revisional proceeding. It cannot also be decided at the interlocutory stage when none of the parties except making statement on sworn affidavits have adduced any evidence in support of their respective contentions either by way of assertion or by way of controvertion. It is settled law that the Court in such case should refrain from giving any decision at the interlocutory stages as to the existence of any right or title of the parties which are the subject-matter of any suit or proceeding. Such prohibition is expressed in legal parlance as prejudging any disputed question or issue and which the Court should not do at an interlocutory stage. The right of easement as claimed by the Plaintiff as to light and -air over the rand of the Defendant as of prescription or otherwise are really questions of fact, which should be decided by the Court at the stage of trial when both parties would come forward to adduce evidence in support of their respective cases. Similarly, the extent of such right has also got to be decided by the Court at the stage of trial. For in a city of Calcutta the extent of such right or easement depends upon various factors like extent or diminution of light and air amounting to nuisance, the site of the disputed properties in particular localities and the like. So in our view, the learned Addl. District Judge in passing the impugned order has gone wrong. He has not considered all these questions and passed an order of Injunction against the Defendant revisionist. So we set aside the order of the learned Addl. District Judge and restore the orders of learned Asstt. District Judge, passed on May 21, 1991. But we affirm the other directions of the learned Addl. District Judge for disposal of the suit expeditiously.

The revision stands allowed to the extent indicated above. There will be no order as to costs.

S.K. Mookherji J.

Although I respectfully concur with the conclusions reached by my learned brother, In propose to indicate my process of reasoning in support of the said conclusion.

In the first place, the disputed property on which the construction in progress is sought to be thwarted admittedly belongs to the opposite parties. The proposed construction again admittedly is being done on the basis of a sanctional plan and ordinarily every person has a right of constructing without interruption in such a situation. It is well settled by several judicial decisions that in order to succeed in preventing such legal right to construct on one''s own land, it is to be established that the construction would result in actionable nuisance against the complainant. In the case of a complaint of actionable nuisance regarding air and light one must show that the interferance with the enjoyment of the same is such that it results in substantial deprivation of a comfortable user of the dominant tenement impossible. In the instant case, the lower appellate Court has overlooked, to arrive at a prima facie satisfaction, on the points as indicated above. The entire approach of the lower appellate Court is endeavoured to be justified on the basis that no prejudice would be caused to the opposite parties if during the pendency of the suit injunction regarding the disputed construction is issued. This approach can be unhesitatingly said to be wrong with the immediate result of issuance of an interim order disregarding the basic criteria for exercise of jurisdiction in such a case. Even the only reasoning of the lower appellate Court can have no bearing in the event of success of the Plaintiff in the suit as there is already a prayer for relief by way of mandatory injunction.

Accordingly, the impugned appellate order is liable to be set aside and the order of the learned trial Judge deserve to be restored.