KHARVA KALU NATHU Vs. NARAN BHAVAN VADHIA

JUDGEMENT

(1.) THE parties are heard.

(2.) THE plaintiff happened to be a tenant of the Trust and was possessed of certain properties, which included constructed area and some open areas. An adjoining house also belonged to the same Trust, the said Trust sold the adjoining house to the defendant on 11th August, 1980. The defendant thereafter made an application to the Municipal Council, Porbandar for grant of permission to raise the construction; on 2nd December, 1980, such permission was accorded and the plaintiff was permitted to raise certain construction, including gallery, bath -room, staircase and compound wall on the ground floor, so also a room with roof on the first floor. On 29th July, 1982, that is, within two years from the date of accord of the permission, the plaintiff -respondent filed the suit submitting, inter alia, that the defendant had raised the construction in a manner which would adversely affect his right of way, light and air. The wall has virtually led to closure of the two ventilators which were in existence for more than 35 years and by raising the wall, the right of way was also adversely affected. He prayed for a decree for declaration and mandatory injunction.

(3.) THE appeal has been admitted for hearing the parties on the following substantial questions of law: