BRAJAMOHAN PODDAR Vs. HARISANKAR BANKA

JUDGEMENT

(1.) PLAINTIFF is the Appellant in both these appeal. The Plaintiff had filed a suit claiming right of easement for removal of encroachment made by the Defendant, for permanent injunction restraining the Defendant from constructing any structure over the schedule 'A' land within 5' from his southern wall in holding No. 109 and also for restraining the Defendant not to obstruct his windows, ventilators and exhaust fans so as to interfere with his right to light and air. The Plaintiff has a four -storied building at Marwari Pada in Sambalpur town bearing holding No. 109 by the side of the Defendant 'E' land described in schedule 'A' to the plaint. The Plaintiff has 14 windows, ventilators and exhaust fans facing the schedule 'A' land of the Defendant and through these the Plaintiff is enjoying light and air since long and has acquired the right of easement. The Defendant had a temporary shed of 15' dimension in the western corner of the schedule 'A' land. The rest of the land was vacant. The Defendant started constructing a residential building covering the entire area in violation of the provisions of Orissa Municipal Act and Rules without leaving a set back of 5' from the Plaintiff's wall with a view to deprive him from enjoying the natural light and air through his windows, ventilators, etc.. The Defendant had also (sic) upon a strip of 5" of his plinth. He had also' attributed fraud and suppression of material particulars to get the sanction of the plan approved by the Executive Officer of the Municipality. As the Defendant turned a deaf ear to the protests of the Plaintiff and proceeded ahead with the construction, the Plaintiff had filed the suit.

(2.) THE Defendant filed written statement and contended that he had a forty year old Kachcha house on a portion of his land in holding No. 109. He started construction of a new building in place of the old one after obtaining permission and sanction of the plan from the Municipal and Town Planning Authorities. He had not violated any provision of the Municipal Act or Rules in constructing his building. Earlier, the Plaintiff had constructed his house adjoining the north of the Defendant's house without leaving the set back of 5' at the border between them in clear violation of the Municipal Act and Rules. He had also constructed the house without obtaining a permission from the authorities concerned. In doing so, the Plaintiff had encroached upon a strip 1 in width from the Defendants land in spite of his protest. The Defendant denied the allegation of encroachment of 5 of land and also denied any right of easement of the Plaintiff to light and air.

(3.) BOTH the courts below have concurrently held that the Plaintiff has no easementary right as claimed. The parties have not encroached upon each other's land. This position is also not disputed here. The controversy now centres round the question,