RSA 61/2011 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B.LOKUR According to learned counsel for the appellants, substantial questions o f law have arisen out of the judgment and decree dated 30.7.2010 passed by the C ivil Judge No.2, Kamrup at Guwahati in Title Appeal No.91 of 2006. The appellants were defendants in the Trial Court. The respondents filed a suit for a declaration and for a permanent injunction restraining the appella nts from constructing a multi storied RCC building on the plot of land within S. S. Road and S.R.C.B, Road, Guwahati without maintaining a set-back of five feet as required by law. Briefly stated, the respondents have been in possession of their neighbo uring plot of land since sometime in 1958. From time to time, they and their pre decessors-in-interest have made constructions on their plot of land. All along f rom 1958, they have been enjoying natural air and light in that area and have co nstructed a building called Radha Bazar which is partly used for commercial purp ose and partly used for residential purposes. The appellants are the owners of the neighbouring plot of land and earli er Assam Type houses on that plot were being used as a market known as Tewari Ma rket. Sometime in December, 1995 the Assam Type houses were demolished and the a ppellants decided to construct a multi-storied RCC building on their plot of lan d. Accordingly, the respondents requested the appellants to maintain a set-back of five feet so that natural air and light is not obstructed in their building. According to the respondents, the appellants agreed to do so, but later resiled from their word. Since the construction of the multi-storied building commenced without the required set-back, a suit was filed by the respondents for a declara tion and for a permanent injunction requiring the appellants to construct by mai ntaining a set-back of five feet. The appellants filed their written statement in which it was stated, int er alia, that no set-back was required to be kept and, therefore, there was no i llegality in the construction being made by the appellants. It was also contende d that permission to construct without a set-back had been granted to the appell ants. On the basis of the broad case set up by the respondents and the appella nts, the learned Trial Judge framed the following issues:- (i) Whether there is any cause of action for the suit. (ii) Whether the suit is maintainable in its present form. (iii) Whether the suit is bad for non-joinder of necessary parties. (iv) Whether the suit is not properly valued. (v) Whether the Indian Easement Act is not applicable in India. (vi) Whether the plaintiff has acquired dominant heritage, and has easement rig ht since 1958. (vii) Whether the plaintiff has acquired right by prescription over the suit lan d. (viii) To what other relief/reliefs the plaintiff is entitled to. Additional issue- (ix) Whether the defendant has constructed the R.C.C. Building, in violation of building by laws, of GMDA/GMC. After trial, all the issues were decided against the appellants and in f avour of the plaintiffs. Accordingly, a decree was passed by the learned Trial J udge on 30.10.2006 in T.S. No.131 of 2006 granting the reliefs prayed for by the respondents. Feeling aggrieved, the appellants preferred an appeal which came t o be dismissed by the impugned judgment and decree. The appellants are now in second appeal and it is submitted by learned c ounsel that substantial questions of law arise for consideration by this Court. I am of the view that from the issues framed, except Issue Nos.6 and 7 and the a dditional issue, all other issues relate to questions of fact and no question of law, much less a substantial question of law arises. With regard to the dominant heritage claimed by the appellant since 1958 , it has been found concurrently by both the Courts below that the respondents a re in peaceful possession of their plot of land and have been enjoying natural a ir and light since 1958 onwards. As such, there was no occasion for the appellan ts to construct an RCC building in such a manner as to deprive the respondents o f the natural air and light. In my opinion, the concurrent findings of the Courts below do not call f or any interference, since it is admitted on record that the respondents have be en in possession of their property since 1958 and they have been enjoying natura l air and light since then and that they have been using their property for resi dential and commercial purposes. As far as the additional issue is concerned, again there is a concurrent finding against the appellants. It has been found as a matter of fact that not only have the appellants been using their property partly for commercial and par tly for residential purposes, but that the appellants have constructed a multi-s toried RCC building both for residential and commercial purposes. Both the Courts below have found that as per Table-II of the Zoning Regu lations for Guwahati Master Plan and the Assam Town and County Planning Act, 195 6 that a set-back of five feet is required to be maintained in a high density co mmercial area where a building is used both for commercial and residential purpo ses. In so far as the present case is concerned, there is no doubt that both the appellants as well as the respondents have been using the construction on th eir property both for commercial as well as for residential purposes. Under the circumstances, in terms of Table-II mentioned above, the appellants are required to maintain the set-back of five feet. Learned counsel for the appellants had drawn my attention to the deposit ion of P.W.2 Sri Diliam Kr. Gogoi. Having gone through the evidence, I find that it has been clearly stated that the appellants have not maintained a set-back a s required by Table-II. This is a matter of fact and I find no perversity in thi s. It is finally submitted by learned counsel for the appellants that permi ssion was granted to his clients to construct an RCC building in such a manner t hat there is no set-back required to be kept. The evidence on record clearly sho ws that this was not proved before any of the Courts below. I am not in a positi on to accept this contention, which again is based essentially on a question of fact. In my opinion, no substantial question of law arises for consideration. The appeal is without merit. Dismissed.