CSA – 66/1997 - Smt. Madan Kanwar Vs. Madan Lal Judgment dt.16.10.08 1/4 S.B. CIVIL SECOND APPEAL NO.66/1997 Smt. Madan Kanwar Vs. Madan Lal Date of order : 16th October, 2008 PRESSENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Jitendra Chopra for the appellant. Dr. P.S. Bhati for the respondents. --------- 1. Concurrently both the courts below held against the plaintiff-appellant dismissing her suit for injunction that the plaintiff could not seek any injunction against the defendant against raising of the construction on a strip of land 11 ft. of width through which the defendant had his main gate of the residential house situated adjacent to the house of the plaintiff and on the said strip of land the plaintiff had merely a window of 4 ft x 4 ft. Both the courts below by judgments dated 20.9.1995 and 24.2.1997 dismissed the suit of the plaintiff. 2. This Court while admitting the present second appeal framed the following substantial question of law:- “Whether a neighbour has a right to file a suit for permanent injunction raising any construction contrary to building bye laws, if so, its effects?” 3. Mr. Jitendra Chopra, learned counsel for the appellant submits that since on the said strip of land there was no ownership right with the defendant Madan Lal, therefore, he could not raise CSA – 66/1997 - Smt. Madan Kanwar Vs. Madan Lal Judgment dt.16.10.08 2/4 construction over the said portion causing prejudice to the right of the plaintiff including her easementary right of light and air through the window opening on the said strip of land. Relying on the decisions of this Court in case of Parvati Bai & Anr. Vs. Bheekam Chand – 1993 WLC 98 and Citizen of Bundi & Ors. Vs. Municipal Board, Bundi & Ors. - 1987 (2) WLN 948 Mr. Jitendra Chopra submitted that the said land in question was the public land or part of public way and, therefore, the defendant was not entitled to raise any construction over the same and, therefore, the courts below have erred in rejecting the suit of the plaintiff. 4. Dr. P.S. Bhati, learned counsel for the defendant- respondent on the side opposite submitted that the plaintiff could not claim any injunction against the defendant as both the plaintiff as well as defendant had purchased the respective portion of the residential house from one Jiya Ram and though on the said strip of land of 11 ft while the defendant had main entrance to his house, the plaintiff merely had a window of 4 ft x 4 ft whereas plaintiff's main entrance and another alternative window were situated at the public way turning besides and in front of her residential house. 5. Dr. P.S. Bhati submitted that though later on even the said strip of land has been purchased by the defendant-respondent from said Jiya Ram, the owner of the said land, however, even when the suit was filed the plaintiff being merely neighbour could not seek any injunction over the construction of a Chabutri by the defendant for the said strip of land which was neither public way nor the land CSA – 66/1997 - Smt. Madan Kanwar Vs. Madan Lal Judgment dt.16.10.08 3/4 belonging to the plaintiff. He submitted that both the courts below on relevant evidence found that the plaintiff had no right to seek any injunction against the defendant and as a matter of fact no substantial question of law arises in the matter and the substantial question of law as framed above deserves to be answered against the plaintiff- appellant. 6. I have heard learned counsels and perused the record of the case. 7. Admittedly the said disputed land of 11 ft wide did not belong to either the plaintiff or the defendant at that time when the plaintiff filed the said suit when the same was belonging to one Jiya Ram. It is also not disputed that through the said strip of land the main entrance of the residential house of the defendant was available whereas only a window opened on the wall of the house of the plaintiff over the said strip of land. The plaintiff had alternative window and entrance on the main road which is 10 ft wide way opposite her house as explained in the map available on record. The Courts below, therefore, cannot be erred in having held that the plaintiff cannot seek any injunction against the defendant for raising a construction of Chabutri over the strip of land and if any such objection could be raised only by the owner of the said strip of land i.e. Jiya Ram and, therefore, the plaintiff Smt. Madan Kanwar being a third party could not raise any such objection or pray for any injunction against the defendant. 8. This Court upon perusal of the record is satisfied that the CSA – 66/1997 - Smt. Madan Kanwar Vs. Madan Lal Judgment dt.16.10.08 4/4 courts below have not committed any error in coming to the conclusion that the plaintiff had no right to seek an injunction in the matter. She has not claimed any easementary right in the present suit but only an injunction on the basis of the fact that disputed strip of land was part of public way. While her locus standi to do so is also doubtful but the substantial question of law as framed above deserves to be answered against the plaintiff-appellant in view of the fact that the defendant was not raising any construction on the land owned by the plaintiff. As far as the said suit land is concerned, the plaintiff was merely a neighbour or third party. The right to sue against the suit land only vested in the owner of the property namely Jiya Ram. 9. The cases cited by the learned counsel for the appellant are distinguishable on the facts of the case as the strip of land in question cannot be said to be part of public way. 10. Therefore, this Court finds no force in the present second appeal of the plaintiff and the question as framed above deserves to be and is hereby answered in negative and against the appellant. 11. This second appeal being devoid of merit is dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.32 babulal/-