VINOD VISANJI CHANDARANA Vs. SHREEDHAR ANANTRAI VAYDA

JUDGEMENT

(1.) Petitioner is original plaintiff whereas respondent is original defendant before the Court of Principal Senior Civil Judge at Devbhumi Dwarka in Regular Civil Suit No. 12 of 2013 wherein plaintiff has prayed for declaration and injunction to restrain the defendant from continuing the construction on his plot of land contending that there is a right of the plaintiff on such plot. Though such suit is filed with an application for interim injunction at exhibit 5 seeking similar interim relief contending that construction by the defendant, if permitted, would restrict his right of easement of light and air also, after hearing both the sides, the Civil Court has dismissed such application of the plaintiff seeking interim relief as aforesaid.

(2.) Therefore, plaintiff has challenged such order dated 24.04.2013 in Civil Misc. Appeal No. 19 of 2013 before the District Court at Khambhalia. The judgment and order dated 14.10.2013 rejecting this appeal is under challenge by the plaintiff under Article 226 and 227 of the Constitution of India. Therefore, the scope of this Court at present is very limited when there are concurrent findings by two courts below. However, when there is no interim relief from the date of suit, till date, surprisingly while filing this Special Civil Application, it is disclosed that operation of impugned orders are stayed and, therefore, the same was continued till date. However, there is an observations while passing such order dated 11.11.2013 that it is without entering into merits. Otherwise also there is no effect of such order since there is no interim order in favour of the plaintiff throughout the proceedings.

(3.) Coming to the facts of the case, after perusing the file on record and after hearing both the sides one thing is clear and certain that practically properties of the plaintiff and defendant are not adjoining to each other and, therefore, if there is a suitable distance between two properties, then practically there cannot be any issue regarding restrictions of easementery right like light and air as pleaded by the plaintiff. Prima facie documentary evidence available on record in the form of sale deed and rough sketch of site, make it clear that there is an open land between two premises of the plaintiff and defendant and it is clear and obvious that defendant is not constructing on such land which is between the two properties, but is constructing house on his piece of land. Therefore both, trial Court and first appellate Court have, after appreciating available evidence on record come to the conclusion that plaintiff has no right to restrict such construction, so also balance of convenience in his favour, so also there would be no irrepairable loss to the plaintiff, if interim relief is refused.