B RAGHUNANDAN SARAN Vs. KANTA DEVI

JUDGEMENT

(1.) THIS is a plaintiff' appeal arising out of a suit for a perpetual injunction to prohibit the defendant from constructing the projection (Chajja) from his house over the lane in accordance with the sanction alleged to have been obtained by him from the Municipal Board, Sambhal. The plaintiff came to the Court on the ground that his easementary right to get light and air into his house, would be curtailed by the proposed construction. The second ground on which he sought the injunction was that the street over which the defendants intended to make the construction was only about five feet wide and the bye-laws of the Municipal Board prohibited the making of any projection over such a lane. The lane runs between the houses of the plaintiff and the defendants.

(2.) THE defendants contested the suit on the ground that the construction of the projection was not likely to affect the plaintiff' right to set light and air, and that the sanction obtained from the Municipal Board was valid and legal.

(3.) LEARNED counsel for the appellant conceded that the finding that the easementary right of the plaintiff about getting light and air was not affected was a finding of fact based on evidence which could not be challenged in this appeal. His contention is that no person can be permitted to make constructions in violation of a bye-law and if he attempts to do so it is open to the citizen to move the Court to prohibit him from violating the bye-law. In support of his submission he has relied on the decision of the Calcutta High Court in Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148. In that case there was a bye-law which required a person making constructions to leave certain open space. The defendant wanted to make constructions without leaving such space. The suit had been filed by a neighbour. The Court held that such a suit was maintainable for an injunction to require the defendant not to violate the bye-law.