P SAINA Vs. KONDERI

JUDGEMENT

(1.) The fast process of urbanisation appears to have adverse impact on well cherished values and human relations. A waning effect on the biblical exhortation to love one's neighbour seems to be one such ill effect. Kennaway v. Thompson ((1980) 3 All ER 329) is an instance of legal action where according to Lawton L. J. the parties forgot the message: 'live and let live'. This second appeal is the culmination of a feud between neighbours on a matter which can normally be treated as trivial. The principle underlying the litigation, however, is one of great importance. The cleavage of judicial opinion on the crucial issue is intense and sharp.

(2.) The parties hail from the City of Calicut. They own and possess adjacent plots, the plaintiff, the northern one and the defendant, the southern. Unikulan was admittedly the owner of the land 'Nalukandi Paramba' comprising the plaint schedule property. Ext. A1 is the demise dated 4-8-1893 relating to that land granted by the Kizhakke Kovilakam. Though the status of the plaintiff as the daughter of Unikulan had been contested, it was upheld by the Trial Court. The controversy was not pursued further. The 1st defendant came by possession of the southern portion on the basis of a lease deed Ext. B1 dated 19-4-1958. Subsequently he obtained the entire rights therein under Ext. B2 dated 29-5-1961. The parties do not make any claim to the property of each other.

(3.) The Corporation of Calicut granted on 9-12-1970 a licence to Bavakutty, the predecessor in interest of the defendants (who are his widow and children) for the construction of a latrine in the property. The blue print of the plan of the house is Ext. B5. On 2-3-1971 permission was granted to the defendants for the construction of the main house, a storeyed building, under Ext. B3. The complaint of the plaintiff was that the defendants' proposed construction would have the effect of reducing the space between the houses to 3 feet. It was stated that the roof of the new construction would protrude into the plaintiff's house. The cause of action was founded on R.30 of the Kerala Municipal Corporation Building Rules framed under the Kerala Municipal Corporations Act, 1961 (hereinafter referred to as the "Act") which enjoins providing a vacant space of 7 feet between two buildings.