1989 PLP 330 (CLC)

Under issues No.l, 2 and 3 which were decided in favour of respondent 1 the trial Court held that by the construction raised by appellant at his plot not only the enjoyment of light and air by respondent 1 has been obstructed but the aforesaid construction has also obstructed the flow of water in the gutter line which existed on r the back side of the shop of respondent

1. Issue 4 was decided in the negative and it was held that as no evidence of any damage . suffered by respondent 1 was produced he was not entitled to claim the same. Under issue No.5 the suit was dismissed on the ground that the suit is barred under sections 4 and 9 of the C.P.C. read vqith sections 77 and 78 of the Municipal Administration Ordinance, 1969. It was also found that the suit was not maintainable under section 56 of the Specificd Relief Act. The first civil appeal filed by respondent 1 against the judgment and decree of the trial Court was accepted and by the impugned judgment the learned first appellate Court reversed the finding of trial Court in issue No.5 and decreed the suit of respondent 1 in terms of findings on issues Nos.l to

3. The learned first appellate Court found that no provision of law was cited before him either by the counsel of appellant or by respondent 2 in support of the contention that the suit was not maintainable in its present form. Mr. Azhar Ali Siddiqui, learned counsel for the appellant has challenged the judgment and decree of the first appellate Court and has raised the following contentions: (1) That the learned first appellate Court‑fell into error in decreeing the suit of the plaintiff inasmuch as the learned Court failed to notice that no evidence was led by respondent 1 to establish that the alleged right or easement was enjoyed by him continuously and without interruption for a period of 20 years which was necessary for claiming the relief. (2) That in view of sections 33 and 35 of the Easement Act no decree for injunction could be granted in favour of respondent 1 in the suit without a decree for damages. Learned counsel for respondent 1 on the other hand supported the judgment and decree passed by the learned first appellate Court and contended that there was clear violation of right of easement enjoyed by respondent 1 in respect of air and light through the window on the back side of the shop of the respondent 1 and there was also evidence to show that the flow of water to the gutter line existing on the back side of his shop was obstructed /interfered by the construction raised .by the appellant, and as such the suit has been rightly decreed by the learned first appellate Court. After hearing the learned counsel for the appellant and the respondents I am of the view that no case for interference with the judgment and decree passed by the appellate Court is made out. The respondent/ plaintiff in his suit in paragraph 4 specifically alleged as follows: ‑ "(4) That similarly at the back of the property on the first floor, there is a water closet and bath, the water and sewerage connections of which are with the only gutter at the back of this property. The water discharged from the said water‑closet and bath, goes to this gutter and the plaintiff had been discharging the said latrine water and rain water from the roof of his house through the aforesaid connection of gutter on the to said back side land and the gutter respectively for over twenty years before the defendant No.l raised obstruction hereinafter alleged, as of right and without interruption." The appellant who was defendant 1 in the suit made only a general denial of the above allegations in paragraph 4 of his written statement. There was no specific denial of the period of 20 years for which the plaintiff /respondent 1 claimed to have enjoyed the easementary right stated in this para. At the trial, the plaintiff in support of his case examined himself and once again reiterated that he is in possession of the shop since 1948 and that he has been, enjoying the right of air and light through the back window and passing of the water through gutter line which existed on the.back of his shop. From the cross‑examination of respondent 1 and the evidence led by the appellant before the trial Court it appears that. the case set up by the appellant before that Court was that neither any gutter line existed on the back of the shop nor there is any window through which the right of light and air was enjoyed by respondent

1. The trial Court made a site inspection of the site in presence of the parties on 21‑3‑1976 and the inspection report shows that at the time of inspection the learned trial Court noticed that there existed an old window on the back of respondent 1's shop through which air was‑ enjoyed and which was obstructed on account of construction raised by the appellant on his plot. It was also noticed by the Court in the site inspection note that gutter line from`' the top of the roof of the shop occupied by respondent 1 passed on the back portion of the .shop of respondent 1 where existed a gutter line, which too was found obstructed by the wall raised by the appellant. The raising of wall by the appellant is not at all in dispute. The contention of the appellant before the Courts below as well in this appeal is that the construction has been raised by him on his own plot and that this construction did not effect the right of easement claimed by respondent

1. Both the Courts below on the basis of evidence on record reached the conclusion that the construction raised by the appellant did obstruct the enjoyment of light and air by respondent 1 through the window which existed on the back side of shop and it was also concurrently found that the gutter line which is in existence on the back of shop of respondent 1 was also closed/ obstructed by the wall raised by the appellant. The above findings are on points of fact which are concurrent. Learned counsel for the appellant was unable to point out any misreading of evidence or perverse application of evidence by the Courts below in this regard. The grievance of appellant before me is that the appellant had not stated in his evidence before the trial Court that the alleged right of easement was enjoyed by him for a period of over 20 years before filing of the suit. I have already referred to para. 4 of the plaint in which the allegation with regard to enjoyment of these rights of easement were specifically stated. Respondent 1 specifically alleged that these rights of easement were enjoyed by him for over 20 years. There was no specific denial of this fact in the written statement which was filed on behalf of appellant in the suit. In his evidence the plaintiff /respondent 1 before the trial Court stated that he is in possession of the shop since 1948 which has been transferred to him by the settlement department in the year 1960. He claimed that he enjoyed the right of air and light through the back window which is in existence at the back of the shop and he also claimed passing of water from latrine and WC in the gutter line through a pipeline which is existing on the back side of the shop. Although he has not in so many words stated that these rights were enjoyed by him for over 20 years but his claim that he is in possession of the shop since 1948 was not at all disputed and the inference drawn by the two Courts below on the basis of the evidence is neither perverse nor contrary to the evidence on record. Apart from it there is nothing in the written statement filed on behalf of the respondent 1 to show that any plea was raised by him before the trial Court to the effect that right of respondent 1 was not perfected on account of their enjoyment by respondent for a period which was less than 20 years. In such circumstances the conclusion arrived by the two Courts below on issues 1, 2 and 3 need no interference. With regard to dismisss' of suit by the trial Court on the ground‑that it was not maintainable, suffice it to say that the learned first appellate Court rightly pointed out that no provision of law was referred by, the counsel of appellant 6 or respondent 2 to show that the suit was not maintainable. The learned counsel for the appellant is unable to support the findings of trial Court on issue‑ No.5 on the basis of provision of law referred in the‑judgment of the trial Court. Apart from it there is a statement on file on behalf of the counsel of the plaintiff /respondent No.l in the R & P of the suit at page 55 in which it is .specifically stated that in view of the statement made by the counsel of respondent 2 in Court the plaintiff /respondent 1 does not claim .any relief against j respondent /defendant

2. The trial Court on the above statement of counsel of respondent 1 passed by the following order on 21.‑5‑1977:‑ "In view of statement given by the learned counsel for the plaintiff I see no reason why the defendant No.2 should not be dropped. I accordingly drop defendant‑_No.2 with no order as to costs. Sd/ 21‑5‑19'77:" In view of the above order passed by the trial Court basked the learned counsel for the appellant and respondent 2 how suit could be. dismissed as not maintainable. The learned counsel for respondent 2 frankly stated that in view of this order of trial Court the suit could not have been dismissed. It is quite clear from the record that the above order passed by the trial Court was somehow or other overlooked when the suit was argued and the attention of the Courts below was nevr drawn to it by the counsel for the parties. It is, therefore, quite clear that the dismissal of suit by.the trial Court as not‑ maintainable was not at all proper and legal in the circumstances. Even otherwise learned first appellate Court rightly reached the conclusion that the provision of law referred to by the trial Court in his judgment for arriving at the conclusion that the suit is barred is wholly misconceived as none of these provisions barred the institution of the suit. The learned counsel for the appellant also contended that no decree of injunction could be granted in the suit in view of the provisions of sections 33 and 35 of the Easements Act. I may only say that this argument of the learned counsel is based on a misconception of the provision of law. Sections 33 and 35 relied by the learned counsel reads as follows:‑ "

33. Suit for disturbance of easement. The owner of any interest in the dominant heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto provided that the disturbance has actual caused substantial damage to the plaintiff.

35. Injunction to restrain disturbance. Subject to the provisions o the Specific Relic Act, 1877, sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement:‑ (a) If the easement is actually disturbed, when compensation for such disturbance might be recovered under this Chapter.‑ (b) If the disturbance is only threatened or intended when the act threatened or intended must necessarily, if performed disturb the easement." A reading of the above sections will show that it is not at all necessary for a Court while granting relief of injunction in a case for enjoyment of easementary right that it must also as a condition precedence award damages to the plaintiff. In fact relief of damages is only one of the reliefs which is also available to the plaintiff who alleges invasion of his right of easement by the defendant. There is no substance in this appeal which is accordingly dismissed but there will be no order as to costs. M.Y.H./D‑37/K Appeal dismissed.