1. This is an appeal by the plffs. against a judgment of the learned Dist. J. Howrah dismissing the plffs'. appeal & the deft, l's cross-objection to that Court.
2. The plffs. instituted the present suit for a permanent injunction restraining the deft. 1 from proceeding with the construction by the deft, on his land & for a mandatory injunction requiring the deft, to pull down certain construction already made. The ground on which the plffs. claimed a perpetual & mandatory injunction was that there has been interference with the plffs'. right to light & air by reason of the constructions made by the deft. It was also alleged that there was a breach of the municipal rules & byelaws which entitled the plffs. to require the deft, not to proceed with the construction of the building. The plffs. & defts. are adjoining owners. The trial court gave the plffs. a modified decree. Against the decree of the trial court both parties appealed. The lower appellate court has maintained the decree of the trial court. The plffs. have therefore preferred an appeal to this Court. There is a cross-objection by the deft. 1 in so far as the decrees of the courts below directed that the deft. 1 be restrained from extending towards the north the room on the eastern side.
3. Mr. Chatterjee appearing for the appellants has contended that inasmuch as the proposed erection on the deft's. land was in contravention of the municipal rules & by-laws, the deft, should be restrained from proceeding with the constructions & further directed to remove the building already erected.
4. The plan of the deft's. building had been sanctioned by the Municipality but the Courts have found that the plan contravened building rules.
5. The constructions in question were made in Howrah. The plffs. would therefore have no right to proceed by way of an application under Section 45, Specific Relief Act.
6. Under Sections 54 & 55, Specific Relief Act, the plffs. may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plffs. In the present case there was no obligation contractual or otherwise, on the part of the plffs. toward the deft., which required that the deft, should construct on his own land in accordance with the Municipal rules & regulations. The plffs. therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the deft's. land may be in breach of Municipal Rules & By-laws.
7. Mr. Chatterjee relied on the case of In Re. Lakshmimoni Dassi '45 C.W. N. 401.'
8. That was, however, a case where an application for a Writ of mandamus, was made in this Court. Such an application may be directed only against the holder of a public office & not against a private individual. The question whether a suit lies 'against' an adjoining or neighbouring owner did not directly arise. The question which was debated was whether an adjoining or neighbouring owner was a person whose property franchise or personal right would be infringed.
9. The above case was cited with approval by Panckridge J., in 'A. C. Mahammad v. Corporation of Calcutta', 45 C. W. N. 408 where however the sanitation & amenities of the applicant's premises was substantially prejudiced.
10. In the present case, the sanitation of the plfl's. building was not likely to be affected.
11. The plffs. might well have a cause of action against the deft, in case the proposed constructions or the constructions already made amounted to an actionable nuisance.
12. In the present case the plff's. building was erected in 1939 & there was no case of acquisition of a right to light & air. The plffs. therefore could not complain that the constructions made by the deft, on his land or the construction proposed to be erected would interfere with his right to ancient light & air.
13. Mr. Chatterjee further contended that the proposed erection of a privy would be a nuisance. But this point was not pressed in the Courts below & there is no evidence to show that the privy which is now being constructed is a nuisance.
14. Moreover, as the lower appellate court points out there was undue delay on the part of the plff. & as such no injunction could be granted.
15. The result is that the plffs' appeal must 'fail.
16. As regards the cross-objection it is directed against that part of the decree of the trial court which restrains the deft. 1 from extending towards the north the room on the eastern side. This injunction cannot be maintained, because the plffs. have no right to light & air. Moreover the proposed construction will not affect the plffs. reasonable enjoyment of his building. That portion of the decree which restrains the deft. 1 from extending his constructions to the north should be vacated. Subject to this variation the decree passed by the court below will stand.
17. The appeal fails & is dismissed with costs. As regards the cross-objection we make no order as to costs.
18. I agree