RSA No.2374 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2374 of 2010 Decided on : 30.06.2010 Jai Karan ... Appellant versus State of Punjab & others ... Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present : Mr. Harsh Bunger, Advocate for the appellant. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? *** RAKESH KUMAR GARG, J. This is plaintiff's second appeal challenging the judgment and decree of the courts below whereby the suit for permanent injunction restraining the respondents from infringing any easementary right of air, light and passage by blocking the windows, ventilators, doors of the plaintiff by constructing any wall or raising any obstruction adjoining the eastern and northern walls of the house of the plaintiff, was dismissed. As per the averments made in the plaint, suit property was purchased by Rattan Chand, father of the plaintiff-appellant in the year 1935, who had raised construction thereupon and wherein the plaintiff & his family is residing. There are windows, ventilators and doors in the eastern wall of the house of the plaintiff-appellant which opens up towards the vacant space and property of Civil Hospital Jalandhar. Plaintiff-appellant is enjoying the easementary rights of light, air and passage through the said windows, doors and ventilators existing in RSA No.2374 of 2010 -2- the eastern and northern wall of the property for the last more than 70/80 years without any objection from the respondents. It is further case of the appellant that his predecessor-in-interest had raised the said building and opened up the windows, ventilators and doors and also constructed a thara adjoining the eastern wall and raised projections in the eastern wall of the property in dispute without any objection from any quarter whatsoever. Defendants/respondents were threatening to raise a wall adjoining the eastern wall of the property and also towards the northern side of the house of the plaintiff/appellant and thereby infringing the lawful easementary rights of the plaintiff/appellant with the passage of the time. Hence, the present suit. Upon notice, defendants contested the suit of the plaintiff/appellant by filing written statement taking various preliminary objections. On merits, it was admitted that appellant had installed doors, windows and ventilators in the wall of his property. It was further pleaded that respondents were in possession of the property owned by the department and there was no vacant place except the hospital property. Plaintiff/appellant had got no right to construct a thara or open the windows etc. in or towards the property of Civil Hospital, Jalandhar. The plaintiff/appellant had opened the doors and windows in the eastern wall in the month of September, 2003 and there is no easementary right over the property of the defendants. Rest of the averments made in the plaint were denied and dismissal of the suit was prayed for. Replication to the written statement was filed denying the averments made in the written statement and reiterating those made in the plaint. RSA No.2374 of 2010 -3- The trial court framed the following issues in the suit: 1. Whether the plaintiff is entitled to the relief of permanent injunction? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is bad for giving no notice under Section 80 CPC? OPD 4. Whether no cause of action accrued to the plaintiff to file the present suit? OPD 5. Whether the plaintiff has no right, title with the disputed property? OPD 6. Relief. Both the parties led evidence in support of their respective contentions. After hearing learned counsel for the parties and appreciating the evidence on record, the trial court decided issue No.1 and 5 against the plaintiff/appellant. Issue No.2 and 4 were held against the defendants being not pressed. Issue No.3 was decided in favour of the plaintiff. Resultantly, vide judgment and decree dated 12.10.2007, suit of the plaintiff was dismissed with costs. While dismissing the suit, trial court observed as under: “Onus to prove that the windows and ventilators were constructed towards the side of defendants, when the same were purchased by father of plaintiff, was upon plaintiff. However, as per the sale deed, only vacant plot was purchased and that too by one Basant Ram. So plaintiff was required to prove his easementary rights over the property of defendants, for a period of 30 years, in accordance with Section 15 of the Indian Easement Act, 1882, but plaintiff has failed to prove the age of construction as no evidence is forthcoming from the side of plaintiff to prove that the windows and ventilators were RSA No.2374 of 2010 -4- constructed towards the side of defendants in the house of plaintiff on the northern and eastern wall almost 30 years ago and the oral evidence led by the plaintiff is insufficient to hold that these windows and ventilators were constructed almost 30 years ago. So plaintiff has failed to lead any cogent and convicting evidence to prove that he is entitled to enjoying the easementary rights of air, light and passage through the windows and ventilators. The best evidence available with plaintiff was to examine any building expert to prove the age of the construction but he has failed to examine any such expert. So in such circumstances, when defendants are claiming that windows and ventilators were constructed in the eastern and northern wall in the year 2003, the onus was heavily placed upon plaintiff to rebut the same which he has failed to rebut. So plaintiff is not entitled to any relief of injunction. So this issue No.1 stands decided against plaintiff and in favour of defendants. Rather plaintiff has got no right or title with the disputed property i.e. The property defendants. Even otherwise plaintiff has failed to prove his right over the suit property as owner. So issue No.5 stands decided against the defendants and in favour of plaintiff.” Feeling aggrieved against the dismissal of his suit by the trial court, appellant filed an appeal, which was also dismissed vide impugned judgment and decree dated 21.01.2010. While dismissing the appeal, lower appellate court found that appellant had failed to establish his right of easement as required under law. Still not satisfied, the appellant has approached this court by filing the instant appeal challenging the judgment and decree of the courts below. Learned counsel for the appellant has vehemently argued that the courts below have failed to appreciate the evidence on record, which has resulted into perverse findings and the same cannot be RSA No.2374 of 2010 -5- sustained in the eyes of law. Elaborating his argument further learned counsel for the appellant has argued that the witnesses of the respondents have clearly admitted the claim of the appellant in their testimony where it has been stated that the house of the plaintiff/appellant is 30/40 years old, meaning thereby that windows, doors in the wall were constructed 30/40 years ago and the appellant was entitled to the easementary right. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arises in this appeal: i) Whether the findings recorded by the ld. Courts below are perverse having been rendered by total misreading and nonreading of material evidence placed on the record? ii) Whether the conclusions drawn by the ld. Courts below are erroneous, being arrived at without evidence/inadmissible evidence? iii)Whether the ld. Courts below have failed to consider the vital pieces of evidence? iv)Whether the findings recorded by the ld. Court below are perverse having been rendered/being contrary to the documents/evidence placed on record? I have learned counsel for the appellant and perused the impugned judgments and decrees. The controversy between the parties in this appeal is as to whether the plaintiff-appellant has a right to maintain windows, ventilators and doors in the eastern and northern wall of his property which opens in the property of respondents. As per the pleaded case of the appellant, construction of the residential house was raised by RSA No.2374 of 2010 -6- the father of the appellant in the year 1935 itself and the windows, ventilators and doors were kept open at that time through which the appellant was enjoying alleged easementary rights of air and light without any objection for the last 70/80 years. Denying the above said argument, respondents have come out with a defence that doors and windows were opened by the plaintiff in the month of September, 2003 without any right and when these opening were made and a thara was constructed, the Chief Medical Superintendent had asked the plaintiff not to do so and that the defendants were within their right to construct a wall into their own property. Both the Courts below on appreciation of evidence have recorded a finding of fact that appellant has failed to establish his right. It is not in dispute that the property was purchased by the sale deed Ex.PW7/4. However, vide aforesaid sale deed Rattan Chand, father of the plaintiff had purchased a vacant plot of land only. There is no other evidence on record to establish the statement of the appellant that the house in dispute was constructed in the year 1935 itself. Neither it can be said that windows, ventilators and doors were that old. Admittedly the suit property falls within the municipal limits of Jalandhar. There is no dispute that in a municipal area in order to raise the construction sanction of site plan by the aforesaid Municipal Committee/Corporation is necessary. No such sanctioned site plan has been proved on record. Neither any completion certificate has been placed on record conclusively establish the age of the house. The alleged admission of DW-1 relied upon by the learned counsel for the appellant is neither categoric nor clear and thus, simply on the basis of aforesaid evidence, it cannot be said that findings of the courts below are perverse giving rise to any substantial question of law as raised by RSA No.2374 of 2010 -7- the appellant. Thus, I find no error in the impugned judgment and decree of the courts below. No substantial question of law as argued arises in this appeal. Dismissed. June 30, 2010 (RAKESH KUMAR GARG) sonia JUDGE