MAHANT ZORAWAR SINGH SHASTRI Vs. MANOHAR DAS

JUDGEMENT

(1.) This is a plaintiff's Second Appeal in a suit for a declaration that the plaintiff is entitled to the right of passage through the door and the southern wall of his house of which the old number was 15/10 and the present number 34/12 of Mohalla Bhairon Bazar adjoining Chau-khamba in the city of Varanasi, and of enjoying light, air and sunshine through the said door and ventilators in the same southern wall of his house. A mandatory injunction for the restoration of the said amenities by demolition and removal of the constructions and the room, which had been erected by the defendants on the eastern end of the lane on the south of the plaintiff's house, and which was said to be 12 feet long and 6 feet wide and 2 feet high from the ground level, and the iron bars, wooden frame and wire mesh was also claimed. The plaintiff claimed to have acquired these rights by prescription and alleged that the aforesaid obstructions in the enjoyment of the said rights by the plaintiff were raised on the 15th April, 1958 which was said to be the date of the accrual of the cause of action and that the plaintiff came to know of the same when he returned to Varanasi in May, 1958. Apart from denying the plaintiff's right even to the house No. 34/12 and the easementary rights claimed by the plaintiff in respect thereto, the defen dants asserted that new constructions had been made by them during the thirty-six years preceding the date of the written statement which was 24-7-1959 and that the position of their house has been the same. The defendants alleged that there was no lane on the south of house No. 34/12 and, at any rate, the dispute between the parties had been resolved by a compromise in Suit No. 865 of 1923 and the present suit was barred by Section 47 of the Code of Civil Procedure as also by res judicata. A large number of issues were framed by the trial Court and, on a consideration of them, it dismissed the suit with costs. On appeal the points raised before the lower appellate Court were five, namely, (1) whether the finding of the lower Court that the impugned constructions were made in 1948 is erroneous ? (2) whether the finding of the lower Court that the suit was barred on the principle of estoppel and acquiescence is erroneous ? (3) whether the finding of the lower Court, that the plaintiff had failed to prove the prescriptive right of passage, light, air etc. is erroneous ? (4) whether the finding that the suit was not barred by Section 47 Civil Procedure Code was erroneous ? (5) whether the discretionary reliefs sought should be granted to the plaintiff ? The lower appellate Court took up the first three points together and, on an appraisal of the evidence, found that the trial Court was right in hold ing that the constructions had come into being by the year 1948, but was in error in observing that the suit was barred by non-exercise of the right of easement within two years next before the suit. According to the lower appel late Court, once a prescriptive right of easement is recognized by a decree of Court, it does not get extinguished by non-user for two years, but can get extinguished only by continuous non-user for twenty years. The lower appel late Court relied upon Section 47 of the Easements Act and the compromise decree dated 1st October, 1923 between the parties in the earlier suit No. 865 of 1923. Further, according to the lower appellate Court, the trial Court was also in error in holding that the suit was barred by the principles of estoppel and acquiescence. On the fourth point, the lower appellate Court read the compromise decree dated the 1st October, 1923 in the said Suit No. 865 of 1923 and held that the decree clearly gave the defendants a right to make new cons tructions so as not to interfere with the enjoyment of light and air by the plaintiff. According to the lower appellate Court, the decree thus contained a prohibition by necessary implication and the defendants could not make any constructions which might interfere with the plaintiff's enjoyment of light and air. Further, apart from the mandatory injunction for removal of the constructions which obstructed the door and the light and air of the plaintiff, the decree also contained a prohibitory injunction to prevent the raising of any construction which might interfere witch the plaintiff's enjoyment of light and air. The lower appellate Court held that the present suit was barred by Section 47 of the Code of Civil Procedure, inasmuch as questions relating to the execution, discharge and satisfaction of the consent decree dated 1-10-1923 in suit No. 865 of 1923 were raised in the present suit. On this point also, the lower appellate Court reversed the finding of the trial Court. On the' fifth point, the lower appellate Court held that plaintiff was not entitled to any relief, and in the result it dismissed the appeal. The first question which, therefore, arises in this appeal, is whether the present suit could be said to be barred by Section 47 of the Code of Civil Pro cedure. The decree dated 1-10-1923, in suit No. 865 of 1923 as quoted in the judgment of the lower appellate Court, is in the following terms: "yeh decree wa huhum hua ki, Dawa muddai mutabiq bayanat pharikain degree howen, Nakal bayanat pharikain:- muddaleh apani us imarat ko hffta lewe jisse ki muddai ke makan ki darwaza aur roikani no hc. yp ko rokuli hai. Muddajeh apane makan he samane baramada wa nai imarat ko is tarik par banawe jisse ki muddai ke makan men roshani hawa ki amadarafat men rukawat na ho. Mud dale ft ko muddai izazat deta hai ki wah teen khirkiyan salakh dar elawa ek khiraki maujoodah ke apane makan ke tisari manzil per shumal ke janib bana lewen. Kharcha jimme pharikain rahen" The first item of decree in the earlier suit was that the defendants do remove that building which obstructed the door of, and the light and air to, the plain tiff's house. The next item of decree was that in constructing the verandah in front of their house and making other new constructions, the defendants should not obstruct the passage of light and air to the plaintiff's house. Lastly the plaintiff permitted the defendants to open three windows with iron bars in addition to the one existing window on the third storey of their house towards the north. The two Courts below have found that the constructions complained of in the present suit had already come into existence in the year 1948. In so far as this finding is concerned, it is a concurrent finding of fact and has been arrived at on an apraisal of the evidence by the two Courts below. It is not possible to say that it suffers from any error of law. If the constructions sought to be demolished, for removal of the obstruc tion to the light and air by the present suit, were the same which the defendant undertook to remove by the first clause of the decree dated 1st October, 1923, then in that case there could be no doubt that the present suit for that relief would be barred by Section 47 of the Code of Civil Procedure. But, the find ing that the constructions which are the subject-matter of dispute in the present suit had coma into existence by the year 1948, implies that these were new constructions raised after the decree dated 1-10-1923. By the second clause of that decree the defendants undertook to construct the front verandah and the new building in such a manner as would not obstruct the passage of the light and air to the plaintiff's house. This implied a prohibitory injunction. The constructions complained of could be assumed to have been raised in breach of the said prohibitory injunction, for, otherwise, the question about the bar of Section 47 of the Code of Civil Procedure could not be raised at all. Now, according to a Division Bench of this Court in Angad v. Madho Ram A. I. R. 1938 All. 416: where a judgment-debtor disobeys a prohibitory injunction, the remedy of the decree-holder is not in the execution department but is by a separate suit. This was followed in Chiranji Lal v. Behari A. I. R. 1958 All. 326. The Andhra Pradesh High Court has taken the same view in Venkata Subbayya v. Veerayya A. I. R. 1969 A. P. 92, and a similar view was taken by the Nagpur High Court in Ajabrao v. Atmaram A. I. R. 1954 Nag. 245 It is, therefore, not possible to endorse the view of the lower-appellate Court that the present suit was barred by Section 47 of the Code of Civil Procedure. The further questions which, therefore, arise are whether the finding of the trial Court that the suit was barred by estoppel and acquiescence was correct and whether it was necessary in law for the plaintiff to have exercised the easementary rights within two years next before the institution of the suit. I shall dispose of the later point first. Once an easement is acquired whether by prescription or by other lawful means, it could be extinguished by a continuous failure to exercise the right of easement for twenty years. It may, in this context, be noticed that issue No. 6, which raises this question, also raised the question whether the suit is barred by time. Since the easement in question was an easement of light and air, there could be no question of any bar of limitation because of Section 23 of the Indian Limitation Act, 1908, which laid down the rule that in the case of a continuing breach of contract or a continuing wrong independent contract, a fresh period of limitation begins to run at every moment of time during which the breach or the wrong, as the case may be, continues. Such a right of casement is thus, as held by the lower appellate Court, lost only by twenty years non-user as laid down by Section 47 of the Indian Easement Act. This brings me to the question of estoppel and acquiescence. On this point, I find it difficult to agree with the lower appellate Court. There was the decree dated the 1st October, 1923. The defendants raised the constructions in suit in spite of that decree. The constructions in suit deprived the plaintiff of the enjoyment of his right to light and air and of passage through the ventilators and the door and he continued to be so deprived of those rights for at least ten or eleven years before he came to Court. It is impossible to say that the plaintiff was not aware of the infringement of his rights. And the case set up by the plaintiff that the constructions in suit were raised on 15th April, 1958 has been found to be false It is impossible to believe the facile assertion made by the plaintiff that he came to know of the constructions com plained of for the first time in May, 1958, when he came to Varauasi. The facts that the plaintiff allowed these constructions to be raised without any objection from his side when they were in the process of being raised, and allowed them to remain for a space of ten long years even after that and filed a suit falsely alleging that the constructions in suit were made in April, 1958 and he came to know of that for the first time in May, 1958, are, in my opinion, sufficient for holding that the plaintiff's claim for demolition of the constructions complained of was barred by acquiescence and laches. If the obstruction of the plaintiff's right of passage through the door and of the right of light and air through the ventilators from more than ten years did not cause any irreparable injury to the plaintiff, such as to necessitate the filing of a suit for their removal, it would be a proper exercise of the Court's discretion in the matter to refuse the grant of the relief of demolition of the pucca cons tructions. The loss caused to the defendants by the demolition of these cons tructions would in all probability be out of all proportions to the inconvenience suffered by the plaintiff by the existence of these constructions. I would, there fore, maintain the dismissal of the suit, though for reasons different from those adopted by the lower appellate Court. In the result, the appeal fails and is dismissed with costs. .