JALLALUDEEN Vs. R S CHINNAIYAN CHETTIAR

JUDGEMENT

(1.) THE defendant in O.S. No. 469 of 1989 on the file of the XV Assistant Judge, City Civil Court, Chennai, who had lost before the two courts below is the appellant in this Second Appeal. This Second Appeal is directed against the judgment and decree of the learned principal Judge, City Civil Court, Chennai dated 30.11.1992 made in A.S. No. 152 of 1992.

(2.) AT the time of admission the following substantial question of law was framed for consideration: "Whether the Appellate Court is entitled to grant the relief of declaration of the right of easement of light and air to the respondent without any proof of acquisition of easementary right of light and air under Section 15 of the Indian Easements Act, 1882"". Apart from the said question of law, the learned counsel for the appellant raised various other contentions which are all substantial questions according to him and submitted detailed arguments.

(3.) ACCORDING to the plaintiffs they are the absolute owners of the house ground and premises bearing door No. 8, Mannar Reddy Street, T. Nagar, Chennai, which they have purchased on 30.10.1981, that the plaintiffs and their predecessors have been in possession of the suit property for over twenty years, that the plaintiffs' property is located on the southern side of the property bearing Door No. 9, Mannar Reddy Street, owned by the first defendant having a passage of eight feet on the eastern side leading to Mannar Reddy Street, that Door No. 9, Mannar Reddy Street consists of a Building and a vacant space on the south eastern and western sides, that the first defendant commenced additional construction on the vacant site on the southern side of his premises during October, 1988, that the additional construction has been built quite flush to the plaintiffs' premises to a length of 60 feet east to west and to a length of 12 feet, east to west leaving only a space of two feet, that such a construction is contrary to the Building Rules, that the plaintiffs' have sent objections to the defendants and representation about the unauthorized construction, that the defendants 2 and 3 have not taken any steps, emboldened by the inaction on the part of the defendants 2 and 3, the first' defendant proceeded further with the construction on his land, that the unauthorized construction completely obstructed the air, light to the plaintiffs building through the windows, ventilators and opening on the northern side, that on account of the said unauthorized construction of the first defendant the walls being built quite flush with the plaintiffs' northern side compound wall, the rain water will seep through and cause damage to the plaintiffs' wall and therefore the plaintiff is entitled to the relief of declaration prayed for and for permanent injunction as well as mandatory injunction prayed for in the suit.