BALARAM DAS GOSWAMI Vs. PURNA CHANDRA RATH

JUDGEMENT

(1.) Plaintiff purchased his house in 1926. To the south of this house lies the lands of the defendant which originally had a kutcha house thereon. The plaintiff raised certain construction on his land lying to the north which became complete in 1932. Plaintiffs' case is that he had a right of easement to light and air and this prescriptive right was used continuously for more than 20 years without any interruption from the defendant. In 1961 the defendant started construction of his house. The plaintiff raised an objection before the municipal authorities that the defendant should not be allowed to construct the second and third stories. On the intervention of the District Magistrate, Puri, an agreement (Ext. 1) was executed between the parties on 2-11-1962. By then the defendant had already constructed the second storey. In the agreement it was settled that the defendant would put venetian shutters to the windows already constructed, but he would not construct a third storey on his building. On 3-11-1963 the defendant attempted to make construction of the third storey and accordingly plaintiff filed the suit for perpetual injunction to restrain the defendant from interfering with his right to light and air. The defence case is that the plaintiff had no easementary right and the agreement Ext. 1 was executed under coercion and undue influence exercised by the District Magistrate of Puri. The trial Court decreed the plaintiffs' suit in part and injuncted the defendant from constructing the third storey. The defendant filed an appeal and the plaintiff a cross-objection. Both the appeal and the cross-objection were dismissed by the lower appellate court. The defendant has filed this second appeal and no cross-objection has been filed by the plaintiff. The result, therefore, is that the trial courts' decree against the plaintiff has become final. In other words, the defendant is entitled to have construction of his second storey which had already been constructed.

(2.) Mr. Pal for the defendant appellant contended that the plaintiff has failed to prove the easementary right and the suit cannot be decreed without a further finding that the plaintiff has been materially affected by the obstruction caused by the defendant. He further contends that no right was conferred on the plaintiff under the agreement (Ext. 1).

(3.) It is to be noted that both the courts concurrently found that the agreement Ext. 1 is genuine and the defence plea that it was the outcome of fraud, undue influence and coercion has been rejected. We would accordingly proceed with the finding that the agreement is genuine and was voluntarily executed by the defendant.