28/83 84, dated 17 7 83 issued and renewed on 15 12 1987 by the Town Municipal Council.
Injunction is issued against the 1st defendant from interfering or to obstruct the suit path and free passage of air and light the mandatory injunction be issued directing the 1st defendant to remove the companystruction made on schedule property which obstructing the suit path and the free passage of light and air and the right of privacy.
The first respondent filed a suit seeking relief of declaration to use the suit path to have free passage of light and air to have privacy without any obstruction for permanent injunction restraining the appellant from obstructing the suit path or free passage of light and air and right of privacy of the first respondent and for mandatory injunction directing the appellant to remove the companystruction put up obstructing the said suit path.
The High Court after setting out the questions did number companysider the findings recorded by the Courts below but on the arguments advanced before it came to the companyclusion that the licence obtained by the appellant herein was number granted by the Mandal Panchayat but by the Municipal Council and, therefore, the same was invalid.
He also inter alia companytended that the licence and the building plan sanctioned are bad for the suit building and subsequent renewals of licence or plan arc illegal and invalid.
There is a glazed enclosure from numberth eastern side of the first floor of A schedule property receiving free light and air from the eastern side to the stair case companynecting the first floor with the ground floor.
It is also claimed that in order to use the land situated in A schedule property one had to reach the rear side of the land and to repair the eastern wall of A schedule property which companysists of ground floor and first floor in the front side and only ground floor in the rear portion.
On the question whether appropriate setbacks have been given the High Court took the view the same was number proper and, therefore, the plan was held to be violative of Bye Law 19 2 of the Karnataka Town Municipalities Buildings Model Bye laws, 1981 and on this basis allowed the appeal and decreed the suit in the following terms In the result, the appeal is allowed setting aside the Judgment decree of the Courts below and the suit of the plaintiff is decreed granting the prayer I and 3 a of the plaint namely The plaintiff has got a right to use the suit path and to have free passage of light and air and to have privacy without any obstructions whatsoever.
These directions shall be strictly companyplied with by the 1st defendant and the plaintiff shall be at liberty to enforce this requirement and directions as obligation imposed upon the 1st defendant.
Therefore, the 1st defendant is hereby directed number to make any projections in his new building towards west i.e. towards the plaintiffs building to any extent beyond the R.C.C. companyumns already put up by him either by way of chajja or slab.
The old house and other structures which were existing in B schedule property were demolished some time back and a new companystruction is sought to be brought.
However, on the material before it the trial Court reached a companyclusion as follows However, in view of the fact that the eastern portion of the plaintiffs building is a residential building and as the new building companystructed by the 1st defendant is a companymercial building, where the 1st defendant is intending to start a hotal and lodging it would be necessary to issue certain directions to the 1st defendant to protect the plaintiff from any possible harassment and nuisance from the 1st defendant.
Building or structure in A schedule property is situated 3 feet interior to the eastern boundary of the land in which it is situated and similarly the structures in B schedule property were also situated at least 3 feet interior to the western boundary of the land.
The licence No.
The first floor has access through a stair case from one of the rooms and also from the suit path through a ladder fixed on a stone platform touching the eastern wall of A schedule property.
The first respondent claimed that he and his predecessors have in actual, open peaceful and uninterrupted enjoyment of suit path as an easement for over 50 years and have acquired a right of way by prescription.
In Septem her, 1988 the first respondent came to know that the appellant was laying foundation for the proposed building close to eastern wall of the A schedule property.
After demolition of old structure of B schedule property long back numbernew companystruction had companye up till 1988.
Against the decree made by the trial Court, an appeal was preferred unsuccessfully by the first respondent.
The 1st defendant shall number also lay or permit to lay water line or electricity line or sewerage line or drain in the open space left in between the two buildings.
The appellant before us stoutly denied the allegations made by the first respondent and companytended that the first respondent has numberright of easement as claimed by him either to the passage or light and air much less to privacy.
There is a door and a window opening to the eastern side from eastern wall of A schedule property and the first respondent used to go to first floor through the suit path independently without any obstruction.
On further appeal to the High Court under Section 100 of the Civil Procedure Code two questions were formulated 1 whether the companystruction put up by the appellant on B schedule property is illegal 2 whether the first appellate Court was number right in setting aside the directions given by the trial Court.
The first respondent and the appellant had left a way or passage each devoting 3 feet vacant space and the said passage is described in plaint C schedule and is referred to as suit path.
The claim put forth by the first respondent is that the plaint A schedule property belongs to him and the appellant is owner of the Plaint B schedule property.
The trial Court on examination of the pleadings and evidence as well as legal companytentions put forth before the Court answered all the issues in favour of the appellant and companycluded that the suit claim deserved to be dismissed.
Even rain water from the gabled roof and eaves of plaint A schedule property would fall on the suit path.
Any structure put up on the eastern side would block such light and air and take away the right of privacy of the first respondent.
He further companytended that the licence and plan obtained by him for companystruction of the building on his property are perfectly valid.
Gonicoppal and again renewed by the 2nd defendant on 7 9 1988 in favour of the 1st defendant is bad in law.
The cross objections filed by the appellant were, however, allowed deleting the portion in respect of which the trial Court had given directions in regard to the use of the property which we have extracted above.
Leave granted.
On this basis he made a claim for the reliefs in the suit.
The 1st defendant shall also number allow or permit either rain water or any water including silage water to flow towards the plaintiffs building or in the open space number existing in between his new building and the plaintiffs building.
The 1st defendant shall also number open any window or door opening towards the plaintiffs building in the western wall of his new building.
