B VENKATAPPA 1 Vs. B LOVIS

JUDGEMENT

(1.) The unsuccessful defendant at the appeal state is the appellant herein. He filed a suit for perpetual injunction to restrain the appellant from constructing ovens of XY of the plaint schedule land and also for perpetual injunction restraining the appellant from constructing the chimney along the Western place of AB common wall. The trial Court dismissed the suit. On appeal, the appellate Court, while conforming the decree of the trial Court, in respect of construction of ovens at XY place of the plaint schedule land, directed the appellant to close the holes in the chimney towards the East by way of mandatory injunction and if he fails to do so the respondent-plaintiff be at liberty to get it done through Court and recover the costs thereof, challenging this part of the decree, the defendant filed this appeal. Against the concurrent decree of both the Courts refused to grant injunction in respect of the first part of the relief the respondent filed cross-objections. Thus this matter.

(2.) In the appeal, Sri Bali Reddy, learned counsel for the appellant, contended that without any proof of an injury or discomfort to the plaintiff on account of emanation of the smoke from the chimney, there is no cause of action for the plaintiff to lay the action seeking mandatory injunction. In support thereof, he relied upon a passage in Halsburys Laws of England 1. Halsburys Laws of England, 4th edition, Volume 34 pp. 117 para 329 which reads thus :

(3.) Therefore, the decree of the appellate Court is clearly unsustainable in law. On the other hand, Sri Gopal Rao, learned counsel for the respondent, contended that the report of the Commissioner, Ex. A. 2 and the oral evidence of the parties, clearly establish that the chimney is 3-" in width and it extends to the top of the first floor. It is also stated that the chimney-holes are projecting towards the plaintiffs side. It is also admitted that the smoke and other fumes are emitting through the holes of the chimney into the plaintiffs side. On these admitted facts, the lower appellate Court has come to the conclusion that the emanation of smoke and fumes would cause discomfort in the enjoyment of the property and that therefore the principle cujust est solum ejus est usque ad coelum meaning thereby that the owner of the soil is the owner also of the whole column of space above the surface, shall be applicable to the air space within the height of the buildings and capable of effective possession. Relying upon this, Sri Gopal Rao, contends that the view of the appellate Court is perfectly legal and it does not warrant interference.