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Patel Amba Natha Vs. Patel Virji Devji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR1003
AppellantPatel Amba Natha
RespondentPatel Virji Devji
Cases ReferredGanesh Prasad and Ors. v. Basdeo
Excerpt:
- - i cannot dispute the proposition that an owner of a property has full right to enjoy his property in any manner that he likes. in my opinion, as long as the defendant tries to enjoy his property the plaintiff cannot have any cause of action against him. it has been further laid down therein that it is perfectly open to the plaintiff to prevent the acquisition of the right of easement to light and air by the defendants by putting up structures on his own land if he so desires......to or invades the rights of others. in this case the plaintiff has contended that by putting up doors in his house abutting on the plaintiff's fali the defendant tries to create certain rights for himself and is also trying to place obstruction in his enjoyment of the fali and also to invade his rights to the fali to the full and unfettered enjoyment of which he has a complete right. in my opinion, as long as the defendant tries to enjoy his property the plaintiff cannot have any cause of action against him. but when the defendant's enjoyment of his property is to the detriment of the plaintiff's rights or is intended to create rights for himself which may derogate from the rights of the plaintiff to his property the plaintiff has a right to prevent him from doing so to the extent to.....
Judgment:

S.H. Sheth, J.

1. The plaintiff filed against the defendant Civil Suit No. 10 of 1959 in the Court of the Civil Judge (Junior Division) at Manavadar for a permanent injunction to restrain the defendant from opening doors and windows abutting on the Fali belonging to him. The plaintiff owns a house in village Sanosara which consists of two rooms on the northern side and a kitchen and Osri on the southern side. Between its northern and southern parts there is an open Fali which separates the two parts. The defendant's house is situate to the south of the plaintiff's house. The defendant was opening doors and windows in his house which would abut on the Fali of the plaintiff.

2. The defendant resisted the suit on the ground that the Fall belonged both to the plaintiff and the defendant. In the alternative, he pleaded that the Fali was a piece of public land. Upon these two alternative pleadings he contended that he had a right to open doors and windows abutting on the Fali.

3. The learned Trial Judge raised the necessary issues and recorded the evidence. Upon appreciating the evidence he recorded the finding that the Fali belonged exclusively to the plaintiff. He, therefore, held that the defendant had no right to open doors and windows. In that view of the matter he passed decree in favour of the plaintiff.

4. The defendant challenged the decree passed by the learned Trial Judge in Regular Civil Appeal No. 4 of 1961 which he filed in the Court of District Judge at Junagadh.

5. The learned Extra Assistant Judge, upon appreciating the evidence on record, confirmed the finding of the learned Trial Judge that the Fali belonged exclusively to the plaintiff. But he took the view that even though the Fali belonged exclusively to the plaintiff the defendant could put up windows in his house abutting on the Fali but not the doors. In that view of the matter he modified the decree passed by the learned Trial Judge and confined the permanent injunction granted by the learned Trial Judge to the opening of the doors.

6. It is against that appellate decree that the defendant has filed the present Second Appeal.

7. I may state here that the plaintiff has not challenged the lower appellate decree in so far as it dismisses his claim for permanent injunction restraining the defendant from putting up windows abutting on the Fali of the plaintiff.

8. In this Second Appeal Mr. Nanavaty who appears for the original defendant does not challenge the finding recorded by the learned Extra Assistant Judge as to the plaintiff's exclusive ownership of the Fali.

9. The only submission which he has made before me in this appeal is that the defendant has the right to do anything to his property that he likes. It is his contention that the defendant cannot be prevented from enjoying his property in any manner he likes. According to him, putting up the doors in the defendant's house abutting on the plaintiff's Fali is a mode of enjoyment of his property for the defendant. I cannot dispute the proposition that an owner of a property has full right to enjoy his property in any manner that he likes. No one can place any obstruction in the way of any owner of a property in such enjoyment of his property. The difficulty only arises when the full and unfettered enjoyment of his property by an owner causes difficulty to or invades the rights of others. In this case the plaintiff has contended that by putting up doors in his house abutting on the plaintiff's Fali the defendant tries to create certain rights for himself and is also trying to place obstruction in his enjoyment of the Fali and also to invade his rights to the Fali to the full and unfettered enjoyment of which he has a complete right. In my opinion, as long as the defendant tries to enjoy his property the plaintiff cannot have any cause of action against him. But when the defendant's enjoyment of his property is to the detriment of the plaintiff's rights or is intended to create rights for himself which may derogate from the rights of the plaintiff to his property the plaintiff has a right to prevent him from doing so to the extent to which the defendant's enjoyment of the property interferes with his enjoyment of his property or is intended to derogate from his rights either now or in future. The defendant's attempt to put up doors in his house abutting on the plaintiff's Fali is capable, in my opinion, of producing atleast two effects so far as the plaintiff is concerned. It is likely to interfere with the plaintiff's exclusive enjoyment of his Fali and it is also likely in course of time to create easement rights for the defendant over the plaintiff's Fali. Mr. Nanavaty has contended that the intention of the defendant to create such rights for himself in course of time can be thwarted by the plaintiff by putting up obstructions in front of the doors which the defendant may put up in his property but, contends Mr. Nanavaty further, he cannot go to the Court of law and seek an injunction of the type which the plaintiff has sought in this case. In support of his contention he has invited my attention to the decision of the Lahore High Court in the case of Kashi Nath and Ors. v. Ram Jiwan and Ors. reported in A.I.R. 1933 Lahore 847. The principle which Mr. Justice Tek Chand has laid down in that case is that where a person is trying to open apertures in his own wall which are likely to interfere with the rights of his neighbour the remedy of the neighbour is to build on his own land or otherwise obstruct the apertures. In such a situation, it has been further laid down by Mr. Justice Tekchand, that a permanent injunction is not the remedy to which the plaintiff is entitled.

10. He has then invited my attention to the decision of the Oudh Chief Court in the case of Ganesh Prasad and Ors. v. Basdeo reported in A.I.R. 1941 Oudh 442. A similar principle has been laid down in that case also. Mr. Justice Ghulam Hasan has held that a mere apprehension of the defendants' acquiring a right of easement to light and air after the lapse of 20 years if the doors-opened by them in the wall of their house towards the plaintiff's land are allowed to stand, cannot afford any justification for preventing the defendants from enjoying their property without interfering with the rights of the enjoyment of the plaintiff of his own property. It has been further laid down therein that it is perfectly open to the plaintiff to prevent the acquisition of the right of easement to light and air by the defendants by putting up structures on his own land if he so desires.

11. These two decisions make it clear that the plaintiff has a right to take steps to prevent the defendant from putting up apertures in his property, the continued existence and enjoyment of which may create for him new rights derogatory to the plaintiff's rights or adversely affecting them. If the plaintiff has the right to take such steps outside the Court of law I am unable to follow why he cannot take recourse to the process of law and prevent the defendant from acting in a manner prejudicial or derogatory to his rights or adversely affecting them. A further expansion of the principle, laid down in the aforesaid two decisions, will mean that the plaintiff will be entitled to file a suit to defend his rights before expiry of the period of 20 years or before the defendant's easement rights mature. But he cannot do so right at the beginning before the defendant embarks upon his adventure to create new rights for himself. In my opinion, if the plaintiff has a right to take steps privately to prevent the defendant from acting in a manner prejudicial or derogatory to his rights he has also the right to have recourse to law to restrain the defendant from doing so. Recourse to law is a more sophisticated and advanced remedy and is intended to bring about just or nearly just solution of disputes between parties without causing a disturbance to social order or without up-setting its balance.

12. In this view of the matter I cannot apply the principles laid down in the aforesaid two decisions. In that view of the matter I am unable to accept the contentions raised by Mr. Nanavaty before me.

The result, therefore, is that the appeal fails and is dismissed with costs.


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