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Balkishan and anr. Vs. Harlal and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Regular Second Appeal No. 379 of 1962
Judge
Reported inAIR1971Raj36; 1969()WLN408
ActsSpecific Relief Act, 1877 - Sections 54
AppellantBalkishan and anr.
RespondentHarlal and ors.
Appellant Advocate L.R. Calla, Adv.
Respondent Advocate L.R. Mehta, Adv.
DispositionAppeal dismissed
Cases Referred and Pabia v. Badia
Excerpt:
.....judge of balotra dated march 31, 1962. 2. the facts are quite simple. 6. the argument of the learned counsel is based on an analogy between a window and a door and is therefore a weak argument. moreover, while it is well established that it is open to a person to use his land as he likes, it is equally well established that, in doing so, he should not invade or violate equally well established rights of the other party. so when there is great probability of a threat to the rights of the plaintiffs, as has been held by the court of facts, so as 'inevitably' to injure the plaintiffs, it was well within the competence of the courts below to direct the issue of a perpetual injunction as a just and convenient way of granting relief to them. all the same, it was recognized that while..........location of their houses. it is apparent from the plan, and is not in dispute, that there is no door or window in the southern wall of the house of the defendants opening on land marked d. there is however a dispute regarding the ownership of that piece of land for, while the plaintiffs claim that it belongs to them and has been in their possession for a long period, the defendants claim that it is a part of a public way and is open to access and has been used by them for more than 25 years.it is however not in dispute that the houses of the plaintiffs open on this land and they have their 'chabutaris' also towards it. the plaintiffs learnt that the defendants wanted to open a door in the southern wall of their house, towards the land marked d in the site-plan, and had applied for the.....
Judgment:

P.N. Singhal, J.

1. The defendants, who have been unsuccessful in both the courts below, have filed this second appeal against the judgment and decree of District Judge of Balotra dated March 31, 1962.

2. The facts are quite simple. The parties are neighbours and it is not disputed that site-plan Ex. 3 correctly shows the location of their houses. It is apparent from the plan, and is not in dispute, that there is no door or window in the southern wall of the house of the defendants opening on land marked D. There is however a dispute regarding the ownership of that piece of land for, while the plaintiffs claim that it belongs to them and has been in their possession for a long period, the defendants claim that it is a part of a public way and is open to access and has been used by them for more than 25 years.

It is however not in dispute that the houses of the plaintiffs open on this land and they have their 'chabutaris' also towards it. The plaintiffs learnt that the defendants wanted to open a door in the southern wall of their house, towards the land marked D in the site-plan, and had applied for the grant of the necessary permission to the Municipal Board. The plaintiffs therefore raised the present suit for the issue of a perpetual injunction restraining the defendants from opening any such door on the ground that this would create new rights of passage over land marked D to which the defendants were not entitled. The plaintiffs prayed further that the defendants may be restrained from interfering with their rights in the land,

3. As has been stated, the defendants took the plea, inter alia, that the land marked D was a part of a public lane, so that it could be used by them. They also pleaded that they had their 'chabutaris' and a place for feeding the cattle in the disputed land, and that it was never in the exclusive possession of the plaintiffs. Certain other pleas were taken, but it is not necessary to refer to them as they have not been mentioned during the course of the arguments in this court.

4. The trial Court framed issues on the points which were in controversy between the parties and reached the conclusion that the land marked D in site-plan Ex. 3 belonged to and was in the possession of the plaintiffs, and that the plaintiffs were entitled to the reliefs claimed in the suit. An appeal was preferred by the defendants but, as it has been dismissed by the impugned judgment, they have filed the present second appeal.

5. It has been argued by Mr. Kalla, learned counsel for the defendants-appellants, that while he is not in a position to challenge the finding of fact that the land marked D in site-plan Ex. 3 was the exclusive property of the plaintiffs, it has not been claimed by the plaintiffs that they have any such right in that land as to prevent the defendants from opening a window in their southern wall overlooking it. In other words, the learned counsel has argued that if a window is opened by the defendants in their southern wall, that would not infringe any right of the plaintiffs, and its construction would be permissible under the law.

On this basis, the learned counsel has argued further that it should not matter if, instead of constructing a window, the defendants want to construct a door. To support his argument that there is, in such cases, no distinction between a door and a window, the learned counsel has placed reliance on Kashi Nath v. Ram Jiwan, AIR 1933 Lah 847. The learned counsel has also made a reference to T. Syed Pitchai Rowther v. K. Devaji Rao, AIR 1937 Mad 21, Ganesh Prasad v. Basdeo, ILR 16 Luck 686 = (AIR 1941 Oudh 442), Agha Muhammad Hussain Jan v. Elias Haji Wahiddino, AIR 1948 Sind 36, Meghu Mian v. Kishun Ram, AIR 1954 Pat 477 and Gulji v. Surja, ILR (1960) 10 Raj 1 to support his argument.

6. The argument of the learned counsel is based on an analogy between a window and a door and is therefore a weak argument. Moreover, while it is well established that it is open to a person to use his land as he likes, it is equally well established that, in doing so, he should not invade or violate equally well established rights of the other party. If therefore there is an invasion on, or violation of, the rights of the other party, or if the threatened act is of a such character that it must inevitably injure the other party, that party would be entitled to redress.

What then would be inevitable injury? The point was considered in Pattisson V. Gilford, (1874) 18 Eq 259 and it was answered as follows:--

'When I say inevitably, I do not use the word in the sense of there being no possibility the other way, because I think Courts of justice must always act upon the theory of very great probability being sufficient; -- all I mean is that there must be such a great probability, that, in the view of ordinary men, using ordinary sense, the injury would follow.'

Applying this test to the present case, it must be held that the contemplated action of the defendants in opening the door in question would inevitably result in injury to the plaintiffs for it would create new rights of ingress and egress over the land marked D in Ex. 3 which belongs to the plaintiffs.

It is futile to argue that the defendants have no intention of using the door for passage over that land, for courts of law have to act in such matters on the basis of great probability and do not have to: reach the conclusion that there is no possibility at all the other way. So when there is great probability of a threat to the rights of the plaintiffs, as has been held by the court of facts, so as 'inevitably' to injure the plaintiffs, it was well within the competence of the courts below to direct the issue of a perpetual injunction as a just and convenient way of granting relief to them.

7. I have examined the cases cited by Mr. Kalla, but they are easily distinguishable. In AIR 1933 Lah 847, the learned Judge was not required to consider the difference between a door and a window. All the same, it was recognized that while every owner has a right to open an aperture in his own wall, he cannot thereby invade the privacy or any other pre-existing and well established right of the neighbour. There is nothing in the judgment which could be said to avail the appellants. The facts of AIR 1937 Mad 21 were different for it does not appear that the doors which were sought to be built in that case opened on the land of the other party. In ILR 16 Luck 686 = (AIR 1941 Oudh 442) there was, it appears, no controversy that the disputed door would be used for passage. AIR 1948 Sind 36 was a case relating to the opening of a window and it was found that it did not infringe the rights of enjoyment of the neighbours. In AIR 1954 Pat 477 their Lordships considered the case of (1874) 18 Eq 259 to which a reference has been made above, and reached the conclusion that even when there is threat of invasion on the right of the plaintiff, a mandatory injunction may be passed, far beyond the provisions of law laid down in Section 54 of the Specific Relief Act, 1877. I do not see how the judgment helps the appellants. ILR (1960) 10 Raj 1 was a case of a window and Pabia v. Badia, 1956 Raj LW 408 - (AIR 1957 Raj 175) cited by the learned counsel for the respondent was not brought to the notice of the learned Judge who decided it.

8. It would thus appear that the learned Judge of the lower appellate Court has not taken an erroneous view of the law so as to require reconsideration. There is no force in this appeal and it is dismissed with costs.


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