Madras High Court
Balasubramanian vs T.Selvi ... 1St on 25 August, 2023
SA(MD)No.387 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 25.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
S.A.(MD)No.387 of 2017
and
C.M.P.(MD)No.8248 of 2017
1.Balasubramanian
2.Shanmuganathan
3.Vadivaambal ... Appellants/Respondents 1,2 &4/
Defendants 1,2 &4
Vs.
1.T.Selvi ... 1st Respondent /Appellant / Plaintiff
2.Amirthagnanam ... 2nd Respondent /3rd Respondent /
3rd Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the decree and judgment, dated 27.04.2017, made in
A.S.No.64 of 2014, on the file of the Principal Subordinate Judge, Madurai
reversing the decree and judgment, dated 11.02.2014, made in O.S.No.472
of 2004, on the file of the District Munsif, Madurai, by allowing this
Second Appeal.
For Appellants : Mr.G.Aravinthan
For Respondents : Mrs.A.L.Gandhimathi
Senior Counsel for R1
1/20
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SA(MD)No.387 of 2017
JUDGMENT
The appellants herein are the defendants 1, 2 and 4. The first
respondent herein is the plaintiff and the second respondent herein is the
third defendant before the trial Court.
2. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
3. The plaintiff has filed the suit for the relief of mandatory
injunction, for removing the additional construction in first and second
floor and also for the permanent injunction, not to put up construction in
the first floor.
4 The brief facts, which referred to in the plaint, are as follow:-
4.1. According to the plaintiff, she has purchased the northern
portion of the house property, bearing Door No.66-A, Petchiamman
Padithurai Road, Madurai, from the first defendant under registered sale
deed, dated 07.12.1992. Originally, the entire property including northern
portion, was owned by the 1st defendant. It is the submission of the
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plaintiff that, apart from the suit property, the first defendant has also latter
on purchased the southern portion of the suit property bearing Door
No.66-A, and put up construction in the year 1990. While putting up
construction, the first defendant has left the open space in between her
house, and also her northern portion of tiled house, which was
subsequently, purchased by the plaintiff. According to the plaintiff, the suit
open space measures East - West 32 feet, both on the Northern side and
Southern side, and north-south side 1 feet on the Western side and 5'6” on
the Eastern side. The plaintiff submitted that after the purchase of the suit
property as old tiled house, she has been enjoying her property, by using the
suit open space.
4.2. While this being so, the plaintiff demolished the old structure
and put up a pucca R.C.C building consisting of ground, first and second
floor. In the said construction, the plaintiff is having one window with
sunshade measuring about 4 X 3 inches and, one ventilator with sunshade
measuring about 3 X 2 inches in the ground floor. According to the
plaintiff, these windows are facing the suit open space, and that they are the
only source to get natural light and air.
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4.3. It is the submission of the plaintiff that, she has put up a
main door way on the eastern side facing the main street. Thereafter, the
first defendant has leased out the open space. Unfortunately, taking
advantage of the silence of the plaintiff, the defendant has also constructed
two lavatories, just immediately below the ventilators of the plaintiff. It is
the submission of the plaintiff that, additional construction put up by the
first defendant near their window will affect their privacy.
4.4. It is his further submission of the plaintiffs that the
construction of the defendant is affecting the privacy and natural air and
light. Therefore, the plaintiffs seeks for removal of those additional
constructions.
5. Brief facts of the written statement are as follows:
The defendants submit that there is no open space as mentioned
in the suit. The defendant further submit that the open space which
defendant is having near the kitchen is occupied by one tenant –
Periyasamy. According to the defendants, that said Muttram (Kw;wk;)
portion belong to the defendant. Therefore, the defendants submits that the
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SA(MD)No.387 of 2017
plaintiff has right in the suit property and the very relief sought for under
Easementary Act is vexatious. Even the so-called additional constructions
have been put up about two years back and this plaintiff did not protest to
the said construction. Hence, prayed to dismiss the suit.
6. Before the trial Court, on the side of the plaintiff, 2 witnesses
were examined as P.W.1 and P.W.2 and 8 documents were marked as
Exs.A1 to A8. On the side of the defendants, 2 witnesses were examined as
D.W.1 and D.W.2 and 12 documents were marked as Exs.B1 to B12. Two
Court documents were marked as Ex.C1 and C2.
7. Based on the evidence and materials on record, the trial Court
has dismissed the suit and found that the plaintiff can't claim right of
privacy as a matter of right.
8. Aggrieved with the said findings of the trial Court, the plaintiff
has preferred an appeal before the First Appellate Court. In which, the first
appellate Court had reversed the finding of the trial Court and decreed the
suit, with the finding that the plaintiff has got a right of easementary.
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9. Aggrieved with the said finding of the first Appellate Court,
the defendants have filed this Second Appeal.
10. This Court, by order dated 05.09.2017, has admitted the
second appeal on the following substantial question of law:
“ (a)Whether the decree for mandatory injunction granted by the
lower Appellate Court is correct in the absence of specific extent of
additional constructions put up by the defendants?
(b) Whether the plaintiff is entitled for any Right of Easement
over the property belong to the defendants?
(c) Whether the decision of this Court reported in (1895)-ILR-18-
Mad163 on the question of privacy apparently ignores the possibility in law
of a right of privacy existing in India is applicable to the present case? ”
11. The learned counsel for the appellants would vehemently
submit that, even according to the sale deed, which stands in the name of
the plaintiff, there is no vacant space as pleaded by them and he would also
submit that though the plaintiff seeks for the easementry right of air and
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SA(MD)No.387 of 2017
light, he has not proved their alleged right of easementry with law. It is
also the submission of the learned counsel for the appellants that the so
called privacy sought for by the plaintiff is alien to Indian Law. It is the
submission of the learned counsel for the appellants that the very suit
property is vague and contrary to Order 7 Rule 3 C.P.C. Therefore, the
appellant prayed to allow this Appeal, by dismissing the suit.
12. Per contra, the learned Senior Counsel appearing for the first
respondent / plaintiff would vehemently submit that the finding of the first
Appellate Court is well considered one and she would also submit that the
Commissioner report would exemplify the presence of the open space. The
learned Senior Counsel would also invite the attention of this Court about
Ex.B7 and would submit that, even according to the defendants, between
1992 and 1998, there was a vacant space of 4 feet and therefore, the very
contention of the defendant that no open space exists cannot be believed.
13. I have given my anxious consideration to the either side
submissions and also perused the materials.
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SA(MD)No.387 of 2017
14. The foremost submission urged by the learned counsel for the
appellants is that there is no such vacant space as pleaded by the plaintiff.
In this regard, the learned counsel for the appellants would draw the
attention of this Court in respect of the sale deed, Ex.A1, A5 and A6. The
first respondent herein has filed a copy of Ex.A5 as an additional typed set
of papers, in which, while describing the property purchased by the
plaintiff, the northern boundary has been shown as “uh[nyl;Rkp
fhypaplKk;> tPLk;> vd; iftrKs;s nfl;b kr;R tPL” .
15. However, the learned counsel for the appellants has invited
the attention of this Court to Ex.A1 and A6, which are certified copies of
the sale deed stands in the name of the plaintiff. Wherein such reference
namely “uh[nyl;Rkp fhypaplKk;> tPLk;” is not found a place and what
exists in Ex.A1 and A6 as the southern boundary of the plaintiff is that “vd;
iftrKs;s nfl;b kr;R tPL”.
16. If there exist any vacant space, there could have been a
reference in the document, which has been submitted by the respondent by
way of an additional typed set. Therefore, from the perusal of Ex.A1 and
A6, this Court is not in a position to agree with the contention of the
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learned Senior Counsel in respect of existence of the common space in
between the defendants' and plaintiff's properties.
17. Therefore, this Court is of the firm view that there is no open
space in between the plaintiff and the defendants property. However, the
first Appellate Court has gone into the evidence of D.W.1 and found that
the defendants has agreed in respect of existence of open space between
1991 and 1998. But, we are not concerned about the existence of the open
space, prior to 1998. On the contrary, we are only concerned about the
existence of open space while the defendant sold the property to the
plaintiff, and whether such space was treated as common between the
plaintiff and the defendants.
18. At this juncture, the learned Senior Counsel has invited the
attention of this Court about the words “eilghij kidaplk;”, found in
Ex.A5, and would contend that the said reference is nothing, but reference
to indicate open space. But, this Court is not in a position to agree with the
learned Senior Counsel. As a matter of fact, while referring the southern
boundary, it referred only the property belong to the defendants. Therefore,
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the mere reference “eilghij” cannot be correlated with the alleged
common open space. Thus, as discussed herein above, this Court is of the
firm opinion that there is no common vacant space in between the plaintiff
and the defendants' property.
19. The learned counsel for the appellants would refer Section 15
of Easementry Act, and would contend that in order to have an easementry
right of light and air, by the plaintiff, they must comply the provision of
Section 15 of the Easementry Act. As rightly submitted by the learned
counsel for the appellants and from perusal of the sale deed, there is no
open space provided, to have a easementry right. Further since the
appellants have purchased the property during 1998 and has instituted the
suit within six years, there could not have been any possibility for her even
to prescribe any right of easement by prescription.
20. In this regard, the learned counsel for the appellants would
also invite the attention of this Court about the judgment of the Hon'ble
Supreme Court reported in 1971-AIR(SC)-1878 (Chapsibhai Dhanjibhai
Danad V. Purushottam). The relevant portion of the judgment reads as
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follows:-
“21. Assuming, however, that the said strip of
land was used by him as a passage, the evidence clearly
showed that it was permissive. There was evidence of a
permission having been asked for from the respondent's
father by the appellant for installing a hand-pump over the
respondent's well in plot No. 93. If the appellant, and
previously his father, were permitted to draw water from
that well, the use of the well for drawing water and of the
strip of land as a passage for going to the well was clearly
permissive and not as an open hostile use over the lessor's
property. The appellant himself admitted that his father
had taken a portion of plot No. 93 on lease paying
separate rent therefore at Rs. 45/-a year, and had put up
thereon a tin-shed which stood there from 1935 to 1941. It
is clear that the strip of land was allowed to be used as a
passage both to the well and the said tin-shed. He
admitted two letters, dated September 30, 1958 and
December 4, 1959, having been written by him to the
respondent both relating to rent due by him in respect of
the said land on which the said tin-shed stood. On these
facts it is impossible to sustain the right of passage over
the said strip of land as an easementary right by
prescription for a continuous period of 20 years.”
((Emphasis supplied by this Court)
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By relying the above judgment, the learned counsel would submit that,
even if the plaintiff had any usage, the same can't be converted as a right
under Easementry Act, as the plaintiff did not have occasion to use the
alleged space for a statutory period of 20 years. As such, the plaintiff
cannot have any right of easementry by prescription. Therefore, this Court
is of the view that even on the ground of easementry right, the appellants
cannot have any remedy from this Court.
21. The other ground raised by the plaintiff is that the
construction of the defendants affects their privacy. In this regard, the
learned counsel for the appellants has also relied upon the judgment of this
Court reported in 1984-1-MLJ-253 (S.Ramalingam Pillai V.
Dhanalakshmi Ammal). The relevant portion of the judgment reads as
follows:-
“6. Even in the book referred to by the learned
Counsel, namely, Law of Easements and Licences by B. B
Katiyar (Ninth Edition) the learned author has summed up as
follows at page 501: There is no such thing as natural right
of privacy recognised anywhere in India and it is only in the
Bengal Presidency where the right has been recognised as
capable of acquisition by prescription as an easement, all
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the other High Courts holding it to be only a customary
easement arising by virtue of local custom. In support
thereof, the learned author had relied on Sayyad Azuf v.
Ameerubibi (obviously being a mistake) and several other
decisions of the other High Courts. Thus, it is fairly
established that a right of privacy is not an actionable wrong
unless such a right has been in enjoyment by the aggrieved
person as a custom. I have already pointed out that the
respondents never pleaded that they have a right of privacy
according to the custom prevalent in that particular locality.
In view of the binding precedent found in Sayyed Azuf (1895)
I. L. R. 18 Mad. 163 : 5 M.L.J. 26, Ameerubibil. I am unable
to draw any inspiration from the several decisions quoted by
the learned Counsel for the respondents. Further, none of
these decisions, namely, Baqridi v. Rahim Bux A.I.R. 1926
Oudh 352, Keshab Sahu v. Dasaratha Sahu A.I.R. 1961 Orissa
154, Bhagwan Dai v. Zamurrad Hussain A.I.R. 1929 All. 676
and Syed Habib v. Kamal Chand , has ever laid down the
principle that the right of privacy de hors custom is a legal
right and if infringed can be enforced and relief obtained in a
Court of law. Indeed, in Keshab Sahu v. Dasaratha Sahu , the
learned Judge observed that a customary right of privacy
cannot be presumed to exist in the absence of pleading and
proof of such custom. The above observation is totally against
the point that was urged by the learned Counsel for the
respondents.” (Emphasis supplied by this Court)
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22. The learned counsel for the appellants has also relied upon
the judgment of this Court reported in 2019-3-LW-740 (Mr.Manohar Lal
V. Mr.A.Kannan). The relevant portion of the judgment reads as follows:-
“24. It is to be noted that as already stated, in
between the plaintiff?s land and the defendant?s land, there is
10 ft gap and a common passage is running right from the
main road. Therefore, it cannot be said that merely because
the neighbour has put up the window facing the other?s
property, others right of privacy is affected. In a city like
Chennai, when the buildings are constructed in a similar
manner and the buildings constructed vertically like flats and
other aspects, one cannot contend that neighbouring
buildings will affect his privacy. If such a contention is
accepted in the present scenario no one can have any
window or open air in the city. If at all the plaintiff is
aggrieved that his privacy is affected by opening the window
by the neighbour, which is situated 10 ft away from his
house, it is for him to take necessary precautions to make
alteration or to put up some construction so that others will
not view his house.” (Emphasis supplied by this Court)
From the harmonious reading of the above precedents, what would emerge
is that, no one have a luxury of privacy by restraining the neighbour from
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putting up construction or opening up a window. Further even to have a
right except for right of air and light, as a easementary, there should have
to claim it as a matter of right, been a continuous usage for statutory period.
23. The yet another submission was also made by the learned
counsel for the appellants that, the suit property has not been described as
mandated under Order 7 Rule 3 of C.P.C.. While reading the suit property,
it refers some additional construction. But, the measurement of such
additional construction has not been provided. When the plaintiff comes
forward to seek a relief of mandatory injunction, it is essential to provide
measurement, so as to identify the suit property in a precise manner. Here,
such precise measurement, much less any measurement has been provided.
Therefore, as rightly submitted by the learned counsel for the appellants,
the suit property has not been described as mandated under Order 7 Rule
3 of C.P.C.
24. In this regard, the learned counsel for the appellants has also
relied upon the judgment of this Court reported in 2022-3-MLJ-417
(Y.Devendran V. D.Shanmugam). The relevant portion of the judgment
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reads as follows:-
“10. Both the Courts below also failed to notice the
fact that Order VII Rule 3 of C.P.C., specifically mandates
that where the subject matter of the suit is an immovable
property, the plaint shall contain the description of the
property sufficient to identify it. In the present case, there is
absolutely not a single averment made in the plaint as to the
nature of illegal construction put up by the 1st defendant
and the extent to which it has been made. The plaintiff did
not even take steps to appoint an Advocate Commissioner to
identify the so called encroachment. Both the Courts went by
the ipse dixit of the plaintiff and have proceeded to decree the
suit even without understanding the extent of encroachment
made by the 1st defendant.”
(Emphasis supplied by this Court)
25. In this regard, the learned counsel for the appellants has also
relied upon the judgment of this Court reported in InduLawLib-1492906
(Venkatachalam V. Sambayal). The relevant portion of the judgment reads
as follows:-
“15.In the said circumstances, as pointed by the
Courts below, in the suit for mandatory injunction, there
must be a specific identification of the property for the
Court to act upon and make the decree executable. Vague
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description of the property referring the old suits without
proper measurement, had invited dismissal of the suit.
Therefore, this Court finds that the dismissal of the suit
filed by the plaintiffs is perfectly in accordance with law
and no substantial question of law involved in this case for
interference.“
(Emphasis supplied by this Court)
26. The learned counsel for the appellants has also relied upon
the judgment of this Court reported in 2015-1-MLJ-183 (K.S.Pururaras V.
P.N.V.Easwaran). The relevant portion of the judgment reads as follows:-
“23. The Advocate Commissioner, in his report
under Ex.C-1, has also stated about the availability of the
road. But what Mr.V.Raghavachari has contended is that the
definite boundary as well as the exact measurement of the
common pathway have not been described properly in the
plaint schedule and therefore, in the absence of proper
description of the property, the suit itself is not at all
maintainable and liable to be dismissed.
24. In support of his contention, he has placed
reliance upon the decision of this Court in Mariappan and
others vs. Marudan and others {1999 MLJ (Supp.) 260}
wherein the learned Single Judge of this Court has held that
the existence of a path running in the property is not at all
adverted to in the plaint description nor any plan has been
filed whereas in the evidence, it is categorically admitted
that there is a pathway. But the plaint description proceeds
as though there is no such pathway and that the entire
property is in one block. Therefore, ignoring the material
circumstance placed before the Court by way of
Commissioner's Report and the admissions of plaintiff's
witnesses, the Court has passed a decree which will become
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unworkable. There is absolutely no whisper to this aspect at
all by the Courts below. In such circumstances, the plaintiffs
have come to Court without any definite case and without
any definite pleading as regards the boundaries, the location
of properties. The vague manner in which 'B' schedule
property is described in the plaint would go to show that the
plaintiffs have failed to place before Courts satisfactory and
sufficient materials.”
(Emphasis supplied by this Court)
Here, though the defendant come forward to have the relief of mandatory
injunction, the defendant did not refer about the extent of alleged
encroachment. Here, this Court held that no encroachment has been
proved. Even for argument sake if we consider any encroachment in view
of absence of precise measurement of the alleged encroachment the suit
must fail.
27. Therefore, this Court is of the firm view, as rightly submitted
by the learned counsel for the appellants, the first Appellate Court
misdirected itself by relying about the physical features of the property
prior to 1998, qua prior to purchase by the defendant. Therefore, the
finding of the learned first Appellate Judge about the existence of some
space prior to purchase of land by the plaintiff has no relevance to decide
the case. Therefore, the findings of the First Appellate Court that the
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plaintiff is entitled for an easementry right is contrary to law. Hence, the
substantial question of law is answered in favour of the appellants.
Therefore, this Court is of the firm view that the order of the first Appellate
Court is liable to be reversed.
28. In the result, the instant Second Appeal is allowed by
reversing the findings of the first Appellate Court, thereby, the judgment
and decree of dismissal passed by the trial Court is restored. There shall be
no order as to costs. Consequently, connected Miscellaneous Petition is
closed.
25.08.2023
NCC : Yes/No
Index :Yes/No
Ls
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SA(MD)No.387 of 2017
C.KUMARAPPAN.,J.
Ls
To
1.The Principal Subordinate Judge,
Madurai.
2. The District Munsif,
Madurai,
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.387 of 2017
25.08.2023
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