BHAGIRATHI SAHA Vs. ANANTANARAYAN DAS CHOUDHURY

JUDGEMENT

(1.) Plaintiff and defendants are owners of two adjoining pucca buildings facing a main road in the town of Puri. Plaintiff brought the suit for injunction restraining the defendants from making any construction on the top of their ground-floor adjoining the window of the plaintiff on his first-floor within fortyfive-degree angle from the sill of the window. Plaintiffs case is that he purchased a double-storeyed building in 1943 by a registered sale deed and is in possession of the same since the time of purchase. Construction of the building was completed in the year 1938. In the first-floor he has one window on the northern wall of the western room, marked 'X' in the sketch-map appended to the plaint. The defendants threatened to make construction over their ground-floor near the aforesaid window in a manner so as to block the flow of light and air to the room of the plaintiff through the said window. They further threatened to obstruct the plaintiff in his convenient and peaceful enioyment of his house. The plaintiff filed Title Suit No. 234/57 in the Court of the Munsif, Puri against the present defendant No. 1, his deceased brother Bholanath and late Suraimal Saha (predecessor of defendants 2 series). That suit was decreed and the defendants carried Title Appeal No. 37/59 of 1961/60 which was allowed in the year 1962. Plaintiff then preferred Second Appeal No. 243 of 1962 in this Court, but a memo of compromise (Ext. 6) was filed on 13-12-63 in the Second Appeal and accordingly the Second Appeal was disposed of on 1-5-64 in terms of the compromise. As per the terms of the decree in the Second Appeal (Ext. 2), the defendant undertook not to make any construction in violation of the Orissa Municipal Rules and also to provide open space in between the existing building of the plaintiff and the building which was to be constructed by the defendants. It is contended that the defendants had given undertaking admitting the easementary right of the plaintiff for free flow of light and air to his house through the window in question. According to the Municipal Rules, the defendants should not make any construction on their first-floor without observing the minimum rule of 45 degree angle from the sill of the window of the plaintiff, but the defendants are carrying on construction in a manner so as to prevent the flow of light and air through the said window.

(2.) In the written statement, the defendants have pleaded that the compromise was not according to law and cannot therefore be given effect to. The Municipal Rules do not provide for leaving open space in the first-floor. Even conceding that the Rules apply, then plinth area of the terrace is to be taken into consideration to find out the space required to be left on either side. The defendants have left open space of more than three feet width in between the wall of the plaintiff and that of their own where the window in question exists. The plaintiff is getting sufficient light and air to his room in question from other directions and the diminution of light and air, as alleged by the plaintiff, is to be ignored. The defendants further contend that they have not violated any terms of the compromise entered into in the Second Appeal. The rule of 45 degree angle can have no application to the present case.

(3.) The trial court held that the compromise entered into in the Second Appeal was not according to Order 23, Rule 3 of the Code of Civil Procedure and as such the decree in the Second Appeal is not valid The plaintiff had acquired prescriptive right of easement to light and air through the window in question. As the right has matured, the plaintiff is entitled to get sufficient light and air through the said window. The defendants have to leave at least 10 feet space from the window in question and they are not entitled to make the construction as per the plan (Ext. A) submitted by them. The prayer for prohibitory injunction made by the plaintiff was decreed restraining the defendants from making any construction within 45 degree angle and for pulling down the construction already made by them on the first floor of their building facing the window of the plaintiff. The First Appellate Court has held that though the compromise decree in the Second Appeal was not according to law, yet the defendants are bound by the undertaking given by them in the High Court. The plaintiff has not perfected his prescriptive right of easement to light and air. The direction was that the defendants have to leave a space of five feet from the sill of the window of the plaintiff making the construction over the first-floor. The First Appellate Court has modified the decree of the trial court as stated above.