Bombay High Court
Bhagwandas Damodhar Agrawal And Anor vs Basilal S/O Hiralal Kale on 7 May, 2025
2025:BHC-NAG:5093
J SA-615-2006.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.615 OF 2006
APPLICANTS : 1 Bhagawandas Damodhar Agrawal,
Aged about 38 years, Occupation : Trader
2 Jaiprakash Damodhar Agrawal,
Aged about 43 Years, Occupation : Trader
Both R/o. Raviwar Bazar area, Patni Chowk,
Washim, Tq. & Distt. Washim.
..VERSUS..
RESPONDENT : Bansilal S/o. Hiralal Kale,
Aged about 63 yrs., Occupation : Trader,
R/o. Patni Chowk, Raviwar Bazar, Tq. &
Distt. Washim.
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Mr A. S. Mehadia, Advocate for Appellants.
Mr A. K. Chandak, Advocate for Respondent.
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CORAM : M. W. CHANDWANI, J.
RESERVED ON : 12th FEBRUARY, 2025
PRONOUNCED ON 7th MAY, 2025.
JUDGMENT
1. Heard.
2. The appeal challenges the decree dated 19.11.2005 passed in
Regular Civil Appeal No.179 of 2003 by the learned First Appellate
Court, Washim, whereby the appeal came to be partly allowed
confirming the injunction restraining the appellants from interfering with
J SA-615-2006.odt
the respondent's right to use, enjoy, repair and maintain the existing
utilities including the water tank, windows, doors, sajjas and water
pipeline abutting the eastern passage between the houses of the
appellants and respondent.
3. This Court by order dated 30.10.2007 framed the following
substantial question of law.
"Whether the extensions/constructions of the wall at the
instance of the defendant within the area of the plaintiffs' plot
were legally liable to be held as encroachments?"
4. For deciding the substantial question of law framed by this
Court, brief facts of the case are necessary.
The appellants/original plaintiffs filed a suit for declaration
that they are the owners of the suit property measuring 115 feet in length
from east-west and 34 feet in width from south-north, whereas the
respondent/original defendant No.1 has a plot measuring 65 feet from
east-west and 16.80 feet from north-south adjoining the southern
boundary of the appellants' plot. In the year 1983, respondent started
construction of his house towards the southern side of the appellants'
plot. During construction, he encroached on the southern side of the
appellants' plot and created chhajjas as a part of the slab having length
and width of 38 feet and 2 feet respectively. He also constructed chhajjas
over the windows measuring 2 feet X 5 feet and over the door measuring
J SA-615-2006.odt
31/2 feet X 2 feet. Apart from that, he constructed a water tank measuring
6 feet X 1½ feet by encroaching upon the plot of the appellants. In 1986,
the respondent extended his water connection by laying two pipes
through the southern portion of the appellants' plot. Similarly in 1990,
he installed a waste discharge pipe in the southern side land of appellants
which caused nuisance to the appellants. During pendency of Regular
Civil Suit No.101 of 1995, respondent constructed a balcony on the
chhajjas and fitted shutters to the windows in his northern side wall i.e.
southern side of the appellant's plot. He started construction of the first
floor and therefore, the suit came to be filed. Respondent denied the
description of appellants' plot and contended that there is a lane
admeasuring 6 feet between the plot of the appellants and the
respondent. The length of the appellants' plot from north-south is only
28 feet. The respondent has been using the land as a customary way and
his predecessors have used it since 1963 continuously without
interruption without affecting the enjoyment of the appellants and their
predecessors. Therefore, he sought dismissal of the suit and prayed that
his counter claim be allowed.
The learned Trial Court after framing necessary issues,
dismissed the suit and passed the decree for perpetual injunction against
the appellants prohibiting them from obstructing the respondent from
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using and enjoying the disputed land. Feeling aggrieved with the decree
and findings recorded by the learned Trial Court, the appellants preferred
an appeal before the learned Additional District Judge, Washim. The
respondent also filed a cross-objection against the dismissal of his counter
claim for declaration. The First Appellate Court partly allowed the appeal
holding that the appellants are the owners of the open space between the
houses of the respondent and the appellants. However, the First
Appellate Court refused to pass a decree for mandatory injunction against
the respondent for removal of water pipes, some portion of water tank,
chhajjas of the wall, underground water pipeline and fitted pipeline in the
wall of bathroom and latrine of the respondent adjoining the open space
and the house of the appellants.
5. Heard the learned counsels appearing for the respective
parties. Having gone through the judgments impugned, the record and
proceedings of the case, it transpires that the First Appellate Court has
held the appellants as owners of the plot having length of 115 feet
towards east-west and north-south and width of 34 feet towards north-
south. It also transpires that the appellants constructed a house by leaving
a space of 6 feet towards the southern side. The respondent constructed
the house on the ground and the first floor having his southern wall
abutting to 6 feet open space left by the appellants. It is a matter of record
J SA-615-2006.odt
that in the said open space, the respondent constructed a water tank
measuring 6 feet in length from east-west and 1.11/2 in width from
north-south. He also constructed chhajjas having east-west length 30
feet, erected second chhajjas on 5 feet east-west and 2 feet north-south on
windows, third chhajjas on the door measuring size 3.6 feet east-west and
2 feet north-south. Now, the question that is to be addressed is, whether
the learned Appellate Court was right in allowing the respondent to
retain the extension of chhajjas on the air space over the plot of the
appellants despite of holding the appellants as the owners of the open
space without claiming any easementary right.
6. Concededly, the respondent has not come up with a case of
any easementary right over the house of the appellants but his case is that
there was a public lane between the houses of the appellants and the
respondent. This stand came to be negated by the First Appellate Court
by holding that the appellants are the owners of the open space having
width of 6 feet towards the southern side which is towards northern side
of the respondent. The said findings attended finality. However, the
learned First Appellate Court did not grant the relief on the ground that
the easementary right of the respondent will be affected.
7. Easement is defined under Section 4 and acquisition by
prescription is defined under Section 15 of the Indian Easements Act,
J SA-615-2006.odt
1882 which reads as under:
4. Easement- An easement is a right which the owner or occupier of
certain land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in respect
of, certain other land not his own.
8. Easement can be acquired by grant, by prescription and by
way of necessity. Easement has to be pleaded specifically. For getting the
relief to protect the easement, it has to be demonstrated that there exists a
right of easement over the land of another. In the present case, the
respondent has not come up with the case as to which type of easement
he has acquired in the plot of the appellants. Rather, he has not come up
to claim any type of easement mentioned above.
9. Notably, the owner of the property is the owner of the air
space above it and there can be no ownership in the air space without
property. It follows the principle that the space above land is a property.
Therefore, by constructing Chhajjas, water tank and installing pipelines,
the respondent cannot interfere with the full enjoyment and use of the
surface/air space above the land of the appellants other than by way of
easementary right on the servient owner. The case of the respondent is
not of being a dominant owner claiming easementary right. Rather, it was
also not pleaded at all by the respondent. The First Appellate Court was
not justified in refusing mandatory injunction to remove chhajjas, water
tank, underground pipes and water pipes from the open space by
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recognizing the easementary right of the respondent which was not
demonstrated to be acquired by him by any of the modes prescribed
under the Indian Easements Act, 1882. Even the sale-deed of the
appellants does not reveal any grant to the respondent to erect chhajjas in
the air space of the land belonging to the appellants and to construct the
water tank.
10. So far as the prayer for mandatory injunction asking the
respondent to close the doors and windows is concerned, the same
cannot be granted for the simple reason that these are constructed in the
wall of the respondent in the area owned by him. It is his choice to
construct the door and windows, therefore, the respondent cannot be
asked to close the doors and windows. The prayer for mandatory
injunction directing the respondent to close the doors and windows is
refused. However, it is made clear that the respondent does not have an
easementary over the space and even the right of light or air.
Consequently, the appeal is partly allowed.
11. The respondent is directed to remove all water pipes, portion
of water tank, Chhajjas of walls and underground pipeline which comes
in the plot owned by appellants.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 09/05/2025 19:29:35
