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Patel Kanji Virji Bhayani (Decd.) by His Heirs Mohanlal Kanji Patel and ors. Vs. Patel Mohanlal Devraj Govanl - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR773
AppellantPatel Kanji Virji Bhayani (Decd.) by His Heirs Mohanlal Kanji Patel and ors.
RespondentPatel Mohanlal Devraj Govanl
Cases ReferredHarris v. De Pinna L.R.
Excerpt:
- - 2. in defence it was contended by the defendants that they have a right to enjoy their property in any manner they like and to make such use of the property as they think fit. justice bhatt that the principle laid down in that decision was not a good law. the only contention which was raised in that appeal (and which is raised in this appeal also) is that the defendant had a right to do anything in his property that he liked and that, therefore, the defendant could not be prevented from enjoying his property in any manner he liked. if both serve the same purpose, can it be said that merely because the defendant has a right to enjoy his own properly in such manner as he likes the plaintiff has no cause of action to resort to a legal remedy to restrain the defendant from acquiring.....s.h. sheth, j.1. the plaintiff filed the present suit against the defendants for a declaration that the defendants do not have the right to fix windows, ventilators etc. in the western wall of their house situate at village supedi in dhoraji taluka of rajkot district and for a mandatory injunction directing the defendants to remove the windows and ventilators which were opened in the wall and for a prohibitory injunction restraining them from opening any in future.2. in defence it was contended by the defendants that they have a right to enjoy their property in any manner they like and to make such use of the property as they think fit.3. the learned trial judge did not uphold the claim made by the plaintiff and, therefore, dismissed the suit. however, the learned appellate judge partly.....
Judgment:

S.H. Sheth, J.

1. The plaintiff filed the present suit against the defendants for a declaration that the defendants do not have the right to fix windows, ventilators etc. in the western wall of their house situate at village Supedi in Dhoraji Taluka of Rajkot District and for a mandatory injunction directing the defendants to remove the windows and ventilators which were opened in the wall and for a prohibitory injunction restraining them from opening any in future.

2. In defence it was contended by the defendants that they have a right to enjoy their property in any manner they like and to make such use of the property as they think fit.

3. The learned trial Judge did not uphold the claim made by the plaintiff and, therefore, dismissed the suit. However, the learned appellate Judge partly allowed the appeal. He granted a declaration that the defendants do not have any easement right to get light and air through doors, windows, apertures etc. in the western wall of their house overlooking the land of the plaintiff. He further declared that the defendants do not have a right to create burden on the plaintiff's land by taking light and air through those windows, doors and apertures. He, therefore, issued a permanent injunction restraining the defendants from fixing any doors, windows and apertures in the western wall on the ground floor of their house. However, he rejected the plaintiffs claim for a mandatory injunction directing the defendants to remove and close windows fixed in the western wall of the first floor of their house. He also rejected the plaintiff's claim for a permanent injunction restraining the defendants from fixing any windows or apertures in the western wall of their house on the first floor. It is that decree which is challenged by the defendants in this second appeal.

4. This appeal came up for hearing in the first instance before Mr. Justice N.H. Bhatt on 10th April, 1978. The learned appellate Judge, while passing the decree in favour of the plaintiff, had relied upon my decision in Patel Amba Natha v. Patel Virji Dzvji XI G.L.R. 1003. It was argued before Mr. Justice Bhatt that the principle laid down in that decision was not a good law. Certain decisions were cited before him with regard to the maintainability of the suit and a request was made to refer the matter to the Division Bench. It is under these circumstances that this appeal has been placed before us.

5. So far as the findings of facts are concerned, they are binding upon us. But before we proceed to examine the legal contentions raised before us, we may mention that defendant No. 2 in his evidence has admitted that the defendants did not have any right whatsoever to get light and air from their western wall when the school building was in existence on the land in question. He alleged an agreement between the defendants and the plaintiff under which defendants could receive light and air through their western wall. The learned appellate Judge has disbelieved the agreement. The adjoining property of the plaintiff on which the windows and apertures fixed by the defendants open is an open land. Mrs. Ghadia, who appears on behalf of the defendants, has raised only one contention before us. According to her, such a suit is not maintainable. In other words her contention is that the defendants cannot be restrained by the order of the Court from enjoning their property in such manner as they think fit.

6. In Patel Amba Natha's case (supra), the plaintiff filed a suit for a permanent injunction to restrain the defendant from opening doors and windows abutting on the Fall belonging to him. The Fall was situate between the plaintiff's house and the defendant's house. The defendant resisted the suit. The learned trial Judge held that the defendant hid no right to open doors and windows abutting on the Fall belonging to the plaintiff and passed decree in favour of the plaintiff. On appeal, the learned appellate Judge took the view that even though the Pali exclusively belonged to the plaintiff, the defendant could put up windows in his house abutting on the Fall but could not open the doors. He, therefore, modified the decree passed by the learned trial Judge and confirmed the permanent injunction restraining the defendants from opening the doors. The matter was brought to this High Court in Second Appeal. The only contention which was raised in that appeal (and which is raised in this appeal also) is that the defendant had a right to do anything in his property that he liked and that, therefore, the defendant could not be prevented from enjoying his property in any manner he liked. In that case two decisions were cited before me in support of the proposition which the defendant raised. Kashi Nath and Ors. v. Ram Jiwan and Ors. A.I.R. 1933 Lahore 847 was one of them. Ganesh Prasad and Ors. v. Basdeo A.I.R. 1941 Oudh 442 was another. This is what I observed in that decision:

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 pontiff 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 the parties without causing disturbance to social order or without upsetting its balance.

A few more decisions have been cited by Mrs. Ghadia in this case. The question which has agitated our minds while reconsidering the abovequoted decision is this; In order that the defendant may not acquire any easement rights in plaintiff's land if the plaintiff has a right to resort to extralegal remedy of putting up construction or obstruction in his own land against the defendant's property, why can he not resort to a court of law and obtain an injunction 7 The purpose which the extra-legal remedy of putting up obstruction serves is the purpose which the legal remedy of obtaining a permanent injunction serves. If both serve the same purpose, can it be said that merely because the defendant has a right to enjoy his own properly in such manner as he likes the plaintiff has no cause of action to resort to a legal remedy to restrain the defendant from acquiring new rights against him? To say that a party may resort to an extra-legal remedy in a situation like this but does not have a cause of action or a lege remedy is to encourage mutual quarrels, conflicts and feuds. In a society governed by rule of law, an individual citizen has no absolute rights as against other ciuzens. If has defendant has a right to enjoy his property, the plaintiff has also a right to enjoy his property. The need for peaceful coexistence of citizens which underwrites the rule of law leads us to the conclusion that the defendant can enjoy his property absolutely and in such a manner as he thinks fit if he does not injure the rights of plaintiff or if he makes no attempt to acquire fresh rights in future by which rights of the plaintiff, present or future, may be injured. Therefore, the basic consideration which is necessary to be borne in mind is that all must co-exist peacefully. In case of mutual disputes existing or apprehended, their solution does not lie in flying at the throat of each other but it lies in resorting to legal machinery provided for adjudication of disputes.

7. The concept that every one has an absolute right to enjoy his property and that a Court of law cannot prevent him from doing so by issuing an injunction is a legacy of the feudal and capitalist society. It does not fit into the modem concept of an egalitarian society which emphasises the peaceful co-existence of all on terms of equality and resolution of disputes between individuals with the help of legal machinery established by the State. In such a society, no citizen has any absolute right. A citizen can enjoy his rights only by respecting the rights of his fellow citizens. Therefore, a citizen whose rights are threatened or apprehended to be threatened can always approach a court of law for their protection by removing the threat, real or apprehended. He cannot be asked to resort to an obtruded feudal and oligarchic way of taking private action to averts such a threat or to allay such an apprehension.

8. In Shridhar Rambhau Mane v. Gujibhai Mhaaku Shewale XXVII B.L.R. 198, the defendant had opened a new Jali which the plaintiff wanted to close. The defendant resisted it. Therefore, the plaintiff sued the defendant for a declaration of his right to close the new Jali opened by the defendant and for a permanent injunction restraining the defendant from interfering with the plaintiff closing the new jali opened by the defendant. The High Court of Bombay held as follows: 'If the jali is new, as is now conceded and as was found by the Trial Court, it is clear that the plaintiff would have the right to close the jali from his side and the defendant would have no right to obstruct him in doing so'. This decision has no application to the instant case because in that case the plaintiff took private action to close the defendant's jali from his side. That a plaintiff has such a right is undisputed before us and has been upheld by all courts. The question which we are required to decide is different. Can the plaintiff, instead of taking private action as the plaintiff took in Shridhar's case (supra), ask the court to direct the defendant to close his jali? Shridhar's case (supra) does not furnish answer to this question and is, therefore, inapplicable to the facts of the instant case.

9. The next decision to which reference has been made is in Parmatma Prasad v. Mt. Sampatli : AIR1968All184 In that case, the plaintiff had constructed a latrine which the defendant demolished and opened a door and a window in his wall adjoining the vacant strip of land. The plaintiff, therefore, filed the suit and prayed for an injunction restraining the defendant from interfering with his use of the strip of land and for a mandatory injunction requiring him to dose up the door and window in his own wall. The High Court accepted the finding of fact recorded by the Courts below that the strip of land on which the defendant had opened a door and a window did not belong to the plaintiff. Obviously, therefore, the plaintiff could not make any grievance against the defendant's action of opening the door and the window on a strip of land which did not belong to him. In that context, the Allahabad High Court held that a person is entitled to open a door or a window in his own wall unless he is under a legal obligation not to do so. In that case, no question whether the plaintiff can obtain an injunction to restrain the defendant from opening windows upon the plaintiff's land arose nor did the question whether he can be ordered to close such windows arise. Therefore, this decision has no application to the facts of the instant case.

10. The next decision to which our attention has been invited is in Ramautar Gope v. Sheonandan Mistri : AIR1962Pat273 In that case, the defendants had opened doors and windows in their western wall which adjoined the plaintiff's land. The plaintiff, therefore, sued the defendants inter alia for a mandatory injunction directing them to close the doors and windows in question. Relying upon the decision of the Calcutta High Court in Sarojini Devi v. Krista Lal Haldar A.I.R. 1923 Calcutta 256, the learned Single Judge observed as follows:

Mr, Chatterji...has contended (hat the appellants being the absolute owners of the western wall of their house cannot be restrained from enjoying all the rights of the property therein and, therefore, even if it be held that the ownership of the land in dispute is in the plaintiffs, then all the plaintiffs can claim in a case like this is that they should be allowed to have a wall erected at the extremity of their own land on the eastern side, notwithstanding, whether that wall would result in closing the door and windows of the defendants in their western wall. In my opinion, this part of the contention has sufficient force and even Mr. S.N. Dutta, appearing for the other side has conceded that to that extent the order passed by the lower appellate Court should be modified.

This decision indeed supports the contention which Mrs. Ghadia has raised. We are unable to accept the principle laid down by the learned Judge therein. We see no logic or reason in the proposition that a plaintiff cannot restrain, under court's order, a defendant from opening windows or door in the latter's wall though, by a private action, he himself can close them down from his side by erecting a structure against them. Next, the learned Judge has followed the principle laid down by the Calcutta High Court in Sarojini Devi's case (supra) to which we are now referring. With great respect, we state that the Calcutta High Court applied, as we shall presently show, the principle laid down by English Courts as early as in 1811 when feudalism and oligarchy were the life and soul of the English society. This concept is an anachronism in modern society and we must bid farewell to it.

11. The next decision which has been cited is Sarojini Devi and Anr. v. Krista Lal Haldar and Ors. A.I.R. 1923 Calcutta 256. In that case, in the eastern wall of the defendant, there were three openings on the ground floor and four on the first floor. The defendant could have, through these openings, access to the plaintiff's house, overlook his rooms and destroy his privacy. The plaintiff, therefore, erected walls on his own land to stop those openings but the defendant demolished them. Therefore, the plaintiff filed the suit for a declaration of his right to obstruct the doors and windows and for a permanent injunction restraining the defendant from interfering with the construction and maintenance of the wall which he proposed to construct. It may be noted that unlike in the instant case the plaintiff did not in that case pray for a prohibitory injunction restraining the defendant from opening windows and doors in the latter's wall and for a permanent injunction directing him to close the existing ones. Therefore, the principle laid down in that decision is strictly not applicable to the facts of the instant case. However, the Calcutta High Court, relying upon Re Penny and S.E. Railway Co. (1857) 7 El & Bl. 660 (HO R.R. 773), Turner v. Spooner (1861) 1 Dr. & Sm. 467 127 R.R. 192 and Chandler v. Thompson (1811) 3 Campbsll 80 13 R.R. 756 observed as follows:

The erection of a wall or other obstacle is, indeed, the only remedy available to a landowner if he is annoyed by the opening of new windows overlooking his ground; he can maintain no action nor can he obtain any other relief at law or in equity; in building to obstruct new windows, however, he must be careful to avoid obstructing ancient lights.

(Emphasis supplied)

Proceeding further, the Calcutta High Court observed as follows:

To put the matter briefly, every one may build upon or otherwise utilise his word land, regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and building of another person. On the other hand, every man may open any number of windows looking over his neighbour's land, for the interference with a neighbour's privacy or with his prospect, does not, by itself, give the latter a cause of action, in the absence of other circumstances. If windows are so opened, the neighbour may, by building on his own land, obstruct the light which would otherwise reach them.

We are unable to comprehend the import of the principle laid down by the Calcutta High Court in this decision because the question which we have raised in this judgment still remains unanswered. If the plaintiff has a right to build on his own land and obstruct the defendant from acquiring any easementary rights against him, why can he not by legal process event the defendant from doing so?

12. The next decision which has been cited is the case of Devidas Vinayak Mahashur v. Birsing son of Bhiosan A.I.R. 1945 Nagpur 231. In that case, the defendant constructed a balcony on that part of his house which adjoined the plaintiff's property. The plaintiff, therefore, filed the suit for an injunction seeking the removal of this balcony on the ground that it obstructed his light and air available to his northern rooms. He also alleged that water dropping from the defendant's roof was likely to fall on the plaintiff's property. In this context, the Nagpur High Court observed:

So far as right to build is concerned, the fundamental position is that every person is entitled to build right up to the limits of his own property. But these rights have first to be acquired. If they are not acquired then the fundamental position remains.

So far the plaintiff's case in relation to the defendant's balcony was concerned, it was dismissed.

13.The next decision to which reference has been made is in the case of Moidin Kunhi Beavy and Anr. v. K. Gopalakrishna Mallya and Anr. : AIR1953Mad849 In that case, the plaintiffs constructed a shop and a building in 1930. Adjoining their premises, there was a vacant land. Defendants occupied it and put up a building, a portion of which they were using as a coffee hotel. In putting up their building on the open land, the defendants interfered with the walls of the plaintiffs' shop and building in order to raise their roof. Secondly, they put up their roof in such a way that light and free air available to the plaintiffs upstairs were cut off. Thirdly, the defendant constructed an oven from which offensive smell emanated making the plaintiffs' upstairs uninhabitable. It constituted an unmitigated nuisance. The plaintiffs therefore filed the suit for mandatory and permanent injunction in regard to the destruction of light and air. The defendants contended that the plaintiffs had acquired no easementary right to light and air and that, therefore, they were within their rights in doing what they had done. The only question which, on these facts, arose for the consideration of the Madras High Court was whether, in order to maintain the suit, the plaintiffs should have proved that they had acquired an easementary right to light and air. The High Court held that it was hot necessary for the plaintiffs to prove the acquisition of such a right in order to maintain the suit. In this context the Madras High Court distinguished between natural rights and easementary rights. In regard to the natural right to the lateral flow of light and air, this is what the Madras High Court said:

If the owner of a property who is entitled to ancient lights, the lateral passage of adequate light arid unpolluted free air, finds himself obstructed to an appreciable and sensible extent by an adjoining trespasser then he can come forward and seek abatement of the private nuisance. The person who is obstructing the light and air happens to be the owner of the property, then there can be no cause of action, the simple distinction being that owner would also be entitled to build right up to the edge of his own property and exercise the same right as the complaining owner.

While making this observation reliance was placed upon the decision of the Calcutta High Court in Sarojini Devi's case (supra). In that case, the defendant was a trespasser. Therefore, there was no occasion for the Madras High Court to make the observation which we have underlined and emphasised in the extract quoted above.

14. We shall now refer to two decisions which were cited before me in Patel Amba Natha's case (supra) which is under review in the instant case.

15. In Kashinath's case (supra) the defendants opened a door and windows in the southern wall of their own house. They were opened on the site which was proved to be belonging to the plaintiffs. The District Judge issued an injunction directing the defendants to close the door and windows. The question which arose before the Lahore High Court was whether such an injunction could be issued. In that context, Mr. Justice Tek Chand observed as follows:

It is conceded that every owner has got right to open apertures in his own wall and unless by doing BO he invades the privacy or any other pre-existing and well-established right vested in his neighbour, the latter cannot force him to close the apertures. The neighbour's remedy is to build on his own land or otherwise obstruct the apertures.

It may be noted that this case was decided on a concession made by the counsel.

16. In Ganeih Prasad and Ors. v. Basdeo A.I.R. (1941) Oudh 442, the defendants inter alia built a chabutara on their own land-plot No. 113/1 and fixed three doors in their walls towards the north of their house on plot No. 110. They opened on the plaintiff's land. The plaintiff sued the defendants inter alia for closing the three doors opening towards the plaintiff's land. The defendants denied the plaintiff's right. The trial Court refused to grant the relief pertaining to the closing of three doors. The District Court reversed it and ordered the defendants to close the three doors. It was contended on behalf of the defendants that order to close the three doors made against the defendants was not legally sustainable. It was argued on behalf of the plaintiff, as in the instant case, that the defendants were not entitled to open new doorways towards the plaintiff's land and acquire a fresh right of light and air from the plaintiff's land because if those doors were allowed to stand for twenty years, the defendants would acquire a right to light and air from his land. Mr. Justice Gulam Hasan while upholding the contention raised on behalf of the defendants observed as follows:

The defendants have opened doors admittedly upon their own land and this they are entitled to do to the extent of their right of possession and enjoyment of their own property unless they are being prevented from doing so by any rule of law or by any right acquired by the plaintiff authorising him to have the said doors closed.

Proceeding further, the learned Judge observed as follows:

There is no legal justification, however, for preventing the defendants from enjoying their property by opening doors in a wall of their house as they have done in the present case unless the plaintiff is to able prove that the existence of these doors interferes with the right of enjoyment by the plaintiff of his own property.... The grant of an absolute injunction restraining the defendant from enjoying his own land is therefore wholly illegal.... Learned Counsel on behalf of the plaintiff-respondent...takes his stand upon the reasoning employed by the lower Appellate Court that there is an apprehension of the defendants' acquiring a tight of easement to light and air after the lapse of 20 years if the doors are allowed to stand. It appears to me that this apprehension cannot afford any justification for preventing the defendants from enjoying their property without interfering with the rights of the enjoyment by the plaintiff of his own property. It is perfectly open to the plaintiff to prevent the acquisition of the right of easement to light and air the by defendants putting up structure on his own land if he so desires.

This decision directly supports the contention which Mrs. Ghadia has raised before me. Now, some of the decisions, cited by Mrs. Ghadia, have no application to the facts of the present case. There are others which lay down the proposition which Mrs. Ghadia has canvassed before us. The later-mentioned class of decisions proceed on the basic philosophical concept which can be stated in the following terms: (1) Every one has a right to enjoy his property in any manner he likes and (2) the Court cannot interefere with that enjoyment unless the aggrieved person has suffered some actual injury to his right. An apprehended threat of an injury to his right is not sufficient to give rise to a cause of action. All these decisions have a persuasive value. The only binding decision which has been cited is in Ranchhad Shamji v. Abdulabhai Mithabhai VI B.L.R. 356. In that case the plaintiff's beam was overhanging the defendant's soil and the defendant had erected a building which was overhanging that beam. The lower Court granted a mandatory injunction directing the removal of the building. The sole question which arose before the High Court of Bombay was whether the beam had given the plaintiff a right to the column of air above it. It was held in that decision that since the defendant was the owner of the soil, he was entitled prima facie to all above it and that the diminution in his rights by reason of the beam did not extend beyond the protrusion of the beams themselves. Reliance was placed upon two decisions of English Courts (1) Corbell v. Hill L.R. 9 Eq. 671 and (2) Harris v. De Pinna L.R. 33 Ch. D. 238, 260. The High Court, therefore, dissolved the injunction and varied the decree. We have summarised this brief judgment in its entirety. All that we find therein is that an owner of a soil is entitled prima facie to all above it. In that case, the plaintiff's beam did not diminish the defendant's rights except only to the extent of the protrusion of the beams themselves. We are at a loss to understand how this principle will apply to the instant case. Though that decision really runs into four printed lines, we had to exercise our brains very heavily to understand the principle which it has laid down.

17. Our attention has also been invited to Section 7 of the Indian Easements Act. It provides as follows:

7. Easements are restrictions of one or other of the following rights (namely),-

(a) The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.

(b) The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.

It is, therefore, clear that every owner of an immovable property has a right to enjoy, without disturbance by another, the natural advantages which arise from its situation. Illustration (a) states that every owner of land in a town has an exclusive right to build on such land subject to the municipal law for the time being in force. Illustration (d) states that every owner of a land has a right to so much of light and air as pass vertically thereto.

18. Several decisions to which we have referred and Section 7 of the Easements Act leave no doubt in our minds that every owner of an immovable property has a right to enjoy such natural benefits as flow from its situation. But in case of two neighbours, both have a similar right. Therefore, in the name of enjoying the natural rights accruing from its situation, an owner of one property cannot subject his neighbour to a disability, now or in future, by which the latter will be prevented from enjoying the natural rights flowing from the situation of his own property. Therefore, natural rights which a person enjoys in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others. Let us now analyse the situation. It cannot be gainsaid that peaceful co-existence is the hallmark of every civilized human society. No person has any absolute rights. His rights are conditioned by the needs of the society he lives in. Where similar rights are available to all or to a section of the society, they must be reconciled. Where private reconciliation of such rights is not possible, recourse must be had to the adjudicatory machinery established by the State. Parties to a dispute cannot be left to fend for themselves to protect their rights. Right to property is indeed important but it cannot be stretched to the extent of saying that if the defendant, in the name of enjoying his property, takes steps now to injure the plaintiff's rights in future, the plaintiff cannot seek the assistance of the Court though he can take private action to protect his rights and to prevent the emergence of the defendant's rights in future. This concept is the direct result of the belief that property is power and is sacrosanct and that it is all in all in life. This is a feudal belief. Several decisions to which we have referred trace the origin of this concept to 18th century feudal English Society. In our opinion, it does not fit into the modern concept of our egalitarian society based upon equality of opportunity and rule of law. It is, therefore, necessary to modify the principle. Every person has a right to enjoy the property without disturbing his neighbour in doing so. Both have equal rights. Mutual respect for each others rights must exist and must be enforced. Therefore, if the defendant injures the plaintiff's rights or threatens to injure them or if the plaintiff reasonably apprehends such a threat, now or in foreseable future, from the defendant, he has a cause of action to sue the defendant. He cannot be left to adopt a private remedy. To leave him to do so or to ask him to do so is to set the hands of the clock back and to push the advanced society back to feudal days. If the plaintiff has a right to take a private action, he has a right to seek the assistance of the court to protect his rights against any injury in future. He cannot be asked to have recourse to a private remedy which may aggravate the disease rather than cure it. We may illustrate this proposition. A builds right up to the edge of his land and opens doors and windows on one side which abut on the land of B.B. also constructs his building right up to the edge of his land with the result that there is not an inch of open space between A's & B's walls. Therefore, A's doors and windows are totally closed up. This is bound to lead to quarrels, conflicts and feuds between them. Instead of driving them to privately settle their scores, why can B not be enabled to seak the assistance of the Court to prevent A from taking steps to acquire fresh rights against B in future? Private action and assistance rendered by the Court will lead to the same result. Why then should the Court encourage the former and refuse to make available the latter? If both construct right up to the edges of their lands, even natural verticle column of air and light will not be available to any of them. Assistance rendered by the Court will eliminate private conflicts and feuds and enable B to construct his structure at his convenience. In our opinion, therefore, the plaintiff can seek a prohibitory and mandatory injunction in such a case. Section 38 of Specific Relief Act, 1963 applies to cases of threatened invasion of the plaintiff's rights. If an action taken now by the defendant threatens to reduce, diminish or destroy the plaintiff's rights at the end of an ascertainable period, the plaintiff can maintain an action under Section 38. In a case of this type, the threat will materialise and become a reality on the expiry of twenty years.

19. However, where A and B cannot construct right up to the edges of their lands but have got to leave some open space for satisfying the municipal law or for any other reason, both will be entitled to verticle column of air and light naturally coming (and not lateral column thereof). In such a case, the plaintiff cannot be allowed to restrain the defendant from opening doors and windows in his wall. From the narrow gap between two buildings, both are entitled to such verticle column of light and air as flows in. In such, a case, the defendant will acquire no rights against the plaintiff in future. Illustration (d) to Section 7 of the Easements Act, in our opinion, means so much and no more.

20. In the instant case, Mrs. Ghadia has not shown us whether the defendant's construction with windows in it touch the edge of his land which meets the plaintiff's land or is set back inside the edge of his land. We believe that both the plaintiff and the defendant have a right to build up to the edges of their respective lands. Therefore, the plaintiff is entitled to the relief of injunction prayed for by him. We are, therefore, of the opinion that the suit filed by the plaintiff was maintainable. The only contention raised by Mrs. Ghadia on behalf of the defendants is without any substance and is rejected. Mr. Shukla, who appears on behalf of the plaintiff, has pressed the cross-objections filed by him. The plaintiff seeks from this Court a mandatory injunction directing the defendants to close the windows and apertures opened by them in their western wall on the first floor and a perpetual injunction restraining them from opening windows and apertures in their western wall on the first floor. The learned trial Judge was in error in not granting the mandatory and perpetual injunction to the plaintiff in respect of the windows and apertures opened by the defendants in the western wall of their house on the first floor. The plaintiff is entitled to it.

21. In the result, the appeal fails and is dismissed. Cross-objections are allowed. the decree passed by the lower appellate Court is modified and it is ordered that a mandatory injunction shall issue to the defendants requiring them to close windows and apertures opened by them in the western wall of their house on the first floor and a permanent injunction shall issue restraining them from opening apertures or windows in future in the western wall on the first floor of their house. Since the controversy in the present appeal has turned upon a question of law and since we have been required to review the decision of the learned Single Judge referred to above, we think that there shall be no order as to costs both in the appeal and in this cross-objections. The defendants shall be at liberty to comply with the mandatory injunction, issued by us, within three months.


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