SUNIL KUMAR Vs. DEVINDER KUMAR

JUDGEMENT

(1.) This revision petition arises out of the orders of learned District Judge. Chamba dated November 29. 2001 in Civil Misc. Appeal No. 18 of 2001.

(2.) Plaintiffs and defendants are the owners of adjacent properties, situated in the town of Chamba. Property of the plaintiff is stuate on Khasra number 3688 which measures 117 sq. yds. 5 sq.ft. The adjoining property of the defendants comprising in various khasra numbers measures 601 sq. ft and 5 q ft. The defendants are constructing reconstructing their building on their land. Plaintiffs filed a suit before the learned trial court for permanent prohibitory injunction seeking to restrain the defendants from raising any construction in front of the residential house/hotel of the plaintiffs and also for mandatory injunction for the demolition of the fourth floor of the building under construction by the defendants.

(3.) The case of the plaintiffs as disclosed in the plaint was: The plaintiffs have their residential house in the building in question. This house was converted into a hotel known as "Hotel GS" and the hotel is being run for the last more than seven years. The plaintiffs after taking loans from the Banks and friends, spent huge amount on the construction of their hotel "GS". The defendants are now raising the construction on their property. They have raised construction upto three storeys and the fourth storey is under construction. This construction, plead plaintiffs, was approved by the Department of Town and Country Planning. Chamba upto the height of 9.45 mtrs. but the defendants are raising the pillars of the fourth storey and have laid lintel for the same which is in front of the hotel/residence of the plaintiffs. The fourth storey being raised by the defendants is in! violation of the provisions of the Town and Country Planning Act. It I is the allegation of the plaintiffs that the defendants have raised their construction upto 13.30 meters in height against the height of 9.45 meters as approved by the Municipal Council and the Department of Town and Country Planning. It is alleged that no space has been left as contemplated under the relevant law. The height of the construction has been raised in excess by 3.55 meters. According to the plaintiffs, the construction of the fourth floor is being raised in a manner that "front view of the hotel GS. of the plaintiffs, has been completely eclipsed. There is hardly any light and air of the house/hotel of the plaintiffs which has been enjoyed by the plaintiffs as an easement and as of right, the same liave been completely affected". It is the case of the plaintiffs that the building is "quite old". Previously, their existed three storeyed house and that house was converted into a hotel which is "having natural light and air". Plaintiffs, it is pleaded, "having acquired a right of air and light through prescription and easement of necessity over the suit land as disscribed above as the residential house of the plaintiffs is existing on the suit land since 1950". According to the plaintiffs, a notice was served on the defendants by Municipal Council. Chamba on June 23. 2001 regarding violation of the approved plan. Even the Municipal Engineer (Inspection) found that the defendants were carrying on the construction of the fourth floor but defendants did not "heed to the notice and other correspondence of the Municipal Council. Chamba".