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Dhanya Kumar JaIn Vs. Rajendra Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2646 of 1968
Judge
Reported inAIR1978All469
ActsSpecific Relief Act, 1963 - Sections 38
AppellantDhanya Kumar Jain
RespondentRajendra Prasad and anr.
Appellant AdvocateShambhu Prasad, Adv.
Respondent AdvocateJ.N. Agarwal and ;Yogesh Agarwal, Advs.
DispositionAppeal allowed
Excerpt:
civil - perpetual injunction - section 38 of specific relief act, 1963 - suit for perpetual injunction brought against the defendant - defendant restrained from opening ventilator on the ground that later can look at the chabutra of the former - plaintiff not entitled for perpetual injunction. - .....who is the second respondent, and sri dhanya kumar jain, defendant-appellant. the trial court decreed the suit and the lower appellate court has confirmed that decree. smt. chandra prabha was concerned with one of the water spouts. she has not appealed. sri sinha learned counsel for the defendant-appellant has confined his case to the decree directing the closure of the ventilators. he urges that even if the ventilators were recently constructed, the defendant-appellant had constructed them in his own wall. the only complaint was that they overlooked the plaintiffs chabutra. but these facts alone did not give the plaintiff a right to have them closed. a person has a right to use his own property in any manner he likes and it has not been shown in the present case that the opening of.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for mandatoryinjunction for closing down certain water spouts and ventilators. There were two defendants, Smt. Chandra Prabha, who is the second respondent, and Sri Dhanya Kumar Jain, defendant-appellant. The trial court decreed the suit and the lower appellate court has confirmed that decree. Smt. Chandra Prabha was concerned with one of the water spouts. She has not appealed. Sri Sinha learned counsel for the defendant-appellant has confined his case to the decree directing the closure of the ventilators. He urges that even if the ventilators were recently constructed, the defendant-appellant had constructed them in his own wall. The only complaint was that they overlooked the plaintiffs Chabutra. But these facts alone did not give the plaintiff a right to have them closed. A person has a right to use his own property in any manner he likes and it has not been shown in the present case that the opening of the ventilators infringed any right of the plaintiff. Merely because the defendant-appellant could look at the Chabutra of the plaintiff through the ventilators opened by him in his own wall, does not give the plaintiff any right to have the ventilators closed. Mr. Sinha urges that anybody walking on the street can have a look on the Chabutra. The plaintiff had no right of privacy or any other right to prevent people from overlooking on his Chabutra which was open to the sky.

2. The two courts below have notconsidered this aspect of the case at all. In a suit of this nature, namely, for perpetual injunction restraining a person from exercising his proprietary rights, it was incumbent on the plaintiff to affirmatively establish the right on the basis of which he claimed to restrain the defendant. The mere fact that the Chabutra was overlooked from the ventilators is in law not sufficient to give the plaintiff any right to have the ventilators closed. Mr. Yogesh Agarwal, who appeared for the plaintiff-respondent was unable to show anything in support of the decree of the courts below on this aspect of the matter.

3. In the result the appeal succeeds and is allowed in part. The decree of the two courts below is set aside in respect of the direction for closing the ventilators. In the circumstances the parties shall bear their own costs throughout.


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