DHANYA KUMAR JAIN Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) THIS is a defendant' s second appeal in a suit for mandatory injunction for closing down certain water spouts and ventilators. There were two defendants, Smt. Chandra Prabha, who is the second respondent, and Sri Dhanya Kumar Jain, defendant-appellant. The trial court decreed the suit and the lower appellate court has confirmed that decree. Smt. Chandra Prabha was concerned with one of the water spouts. She has not appealed. Sri Sinha learned counsel for the defendant-appellant has confined his case to the decree directing the closure of the ventilators. He urges that even if the ventilators were recently constructed, the defendant-appellant had constructed them in his own wall. The only complaint was that they overlooked the plaintiff' s Chabutra. But these facts alone did not give the plaintiff a right to have them closed. A person has a right to use his own property in any manner he likes and it has not been shown in the present case that the opening of the ventilators infringed any right of the plaintiff. Merely because the defendant-appellant could look at the Chabutra of the plaintiff through the ventilators opened by him in his own wall, does not give the plaintiff any right to have the ventilators closed. Mr. Sinha urges that anybody walking on the street can have a look on the Chabutra. The plaintiff had no right of privacy or any other right to prevent people from overlooking on his Chabutra which was open to the sky.

(2.) THE two courts below have not considered this aspect of the caste at all. In a suit of this nature, namely, for perpetual injunction restraining a person from exercising his proprietary rights, it was incumbent on the plaintiff to affirmatively establish the right on the basis of which he claimed to restrain the defendant. THE mere fact that the Chabutra was overlooked from the ventilators is in law not sufficient to give the plaintiff any right to have the ventilators closed. Mr. Yogesh Agarwal, who appeared for the plaintiff-respondent was unable to show anything in support of the decree of the courts below on this aspect of the matter.