K MOHIDEEN IBRAHIM Vs. M MUHAMMED ABDULLAH

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the judgment and decree of the learned District Judge, Ramanathapuram at Madurai dismissing A. S. No. 121 of 1975 on the file of his court and confirming the judgment of the learned subordinate Judge, Ramanathapuram at Madurai, dismissing O. S. 75 of 1973, a suit instituted by the plaintiff for declaration that the suit wall marked AB in the sketch annexed to the plaint is the exclusive wall of the plaintiff, for declaration that the plaintiff is entitled to right of easement for free flow of light and air through the windows marked W-3 to W-7 in the aforesaid sketch, for a permanent injunction restraining the defendant and his men from interfering in any way with the plaintiff's right to light and air through the said windows and for a mandatory injunction directing the defendant to remove the terraced portion of the building immediately west of the windows W-1 and W-2 and the constructions put up by him west of the windows W-3 and W-4.

(2.) THE house bearing door No. 97 in Periappallivasal St, Virudhunagar originally belonged to Kader Mohideen Rowther father of the plaintiff. The father of the plaintiff inherited a portion of the said property from his father and purchased the remaining portion under a registered sale deed dated 22-10-1910. The old constructions were demolished and new constructions were put up in the year 1911 or 1912. According to the plaintiff, it was his father who constructed the western wall as well as the eastern wall for the building bearing door No. 97. At the time of the construction of the walls, the plaintiffs father put up five windows on the ground floor marked as W-1 to W-5 in the plaint sketch and two windows in the upstairs portion marked as W-6 and W-7. The said windows are ancient windows through which the house was getting light and air from the open space on the western side. The plaintiff's contention is that the western wall of the said door No. 97, which is the subject-matter of the suit, is his exclusive wall and that he has acquired an easementary right for his house through the windows W-1 to W-7.

(3.) THE western house bearing door No. 96 originally belonged to one Ismail rowther son of Hussain Rowther. According to the plaintiff, originally there was a construction only on the southern portion of the said house and the remaining portion was a vacant site and the owner of that building had absolutely no right whatsoever to the western wall of door No. 97. One Arunachala Nadar purchased the eastern half of door No. 96 from one Abdul Kader Rowther in the year 1958. He removed the terraced portion that was then in existence and which was below the level of the windows W-1 and W-2 in the suit wall and put up a new construction to 1959 at a higher level, thereby obstructing the two windows. He. also put up a tiled verandah adjoining the suit wall and sloping towards south. That construction also, according to the plaintiff, obstructed a portion of window No. 4 in the suit wall. The plaintiff contends that as he was at madurai at the time of the said constructions, he was not aware of them and as soon as he came to know about the constructions, he issued a notice on 21-101959, to Arunachala Nadar calling upon him to remove the offending constructions. There was talk of compromise and Arunachala Nadar agreed to remove the offending portions in order to facilitate the free flow of the light and air to the house of the plaintiff through the windows W-1, W-2 and W-4 and removed the tiled construction adjoining the window W-4. However, he did not remove the construction which was causing obstruction to the other two windows. Subsequently, the defendant purchased door No. 96 from Arunachak nadar under a registered sale deed dated 22-1-1973. In that document, the suit wall is described as a common wall. The contention of the plaintiff is that this recital is false and has been introduced deliberately for the purpose of putting forward a false claim to the suit wall. The defendant applied to the virudhunagar Municipality for reconstruction of his building. He filed a plan showing the suit well as a common wall. The plaintiff sent a petition to the commissioner of Virudhunagar Municipality objecting to the issue of permission to the defendant for putting up constructions in such a manner as to affect his right to the suit wall and also his easementary right of light and air through the windows in the suit wall. He also gave a complaint to the police on 19-4-1973. The police made an enquiry. According to the plaintiff, he and the defendant gave an undertaking to the police not to put up any new construction without settling their disputes either with the aid of mediators or through a competent court. Overruling the objections raised by the plaintiff, the Commissioner of virudhunagar. Municipality granted permission to the defendant to put up constructions. In pursuance of that permission, the defendant started digging up the grounds to lay the foundation of his building close to the suit wall The plaintiff once again sought the help of the police. On 23-5-1973, the plaintiff received a copy of the order, dated 21-3-1'973, passed by the Commissioner of the Municipality granting permission to the defendant to put up constructions. He directed the plaintiff to seek, his remedy in a Civil Court. According to the plaintiff, he rushed to Madurai immediately to take necessary legal action against the defendant and taking advantage of his absence from Virudhunagar, the defendant removed the tiled roof adjoining the fourth window from the south and raised the east-west in between the windows W-3 and W-4 to such a height as to obstruct the said windows. He also laid rafters from north to south in order to put up a terrace over them. The contention of the plaintiff is that if the defendant is permitted to construct a building, the passage of light and air through the windows W-3 and W-4 would be completely cut off and his building will become unfit for occupation.