In the High Court of Punjab & Haryana at Chandigarh
R.S.A. No. 3915 of 2005
Date of decision: July 11, 2008
Brij Mohan Sarup
... Appellant
versus
Naresh Kumar
... Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. B.S. Jaswal, Advocate
for the appellant.
Mr. Gaurav Khera,Advocate
for the respondent.
A.N. Jindal, J (Oral)
The plaintiff-appellant has impugned the judgment dated
24.5.2005 by way of second appeal. The substantial question involved in
the case is whether respondent could raise a wall on his own land in order
to obstruct the window opened by the plaintiff-appellant in his wall towards
the land of respondent.
Brief facts of the case are that the plaintiff appellant (herein
referred as ‘the plaintiff’) is the owner in possession of House No.545/5
situated at Kayastan Mohalla, Rohtak and he opened a window on the
eastern side of the room on the first floor of the house. Naresh Kumar
defendant-respondent (herein referred as ‘the respondent’) constructed a
wall near the window of his house which he had purchased in the year 1997
by way of sale deed Ex.D-1. The plaintiff while assailing the impugned
judgment passed against him by the court below has stated that he has right
of enjoyment of air and light to his house, therefore, he has acquired right of
easement by prescription and necessity. The defendant had no right to raise
wall in front of his window thereby obstructing the enjoyment of light and
air.
The suit was resisted by the defendant by filing written
statement, whereby he stated that he constructed the wall on his own land to
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protect his privacy. The plaintiff had no right to stop the defendant from
raising the wall. There is one ventilator on the northern side to get fresh air
and light for the room constructed by him on the first floor of his house,
therefore, question of right by easement by way of prescription or necessity
does not arise.
On the rival contentions, the trial court framed the following
issues :-
1. Whether the defendant has raised construction of the
wall towards eastern side of the house of the plaintiff, as
alleged in the plaint? OPP
2. If issue No.1 is proved, whether the plaintiff is entitled
for a decree of mandatory injunction directing the
defendant to remove the wall in question, as alleged in
the plaint?OPP
3. Whether the suit of the plaintiff is not maintainable in
the present form, as alleged?OPD
4. Whether the plaintiff has no locus standi to file the
present suit, as alleged?OPD
5. Relief.
The trial court dismissed the suit vide judgment dated
21.12.2004 which was upheld by the learned District Judge, Rohtak vide
judgment dated 24.5.2005.
Having perused the impugned judgment it transpires that the
right of easement was available to the appellant on the grounds viz. (i)
easement by way of necessity being continuous; and (ii) as a matter of right
for a period over 20 years. The plaintiff, though, has taken the plea that he
has been using the window for enjoyment of light and air, yet, he has not
stated anywhere if there was no other window in the room for receiving
light and air, but at the same time, learned counsel for the respondent has
argued that there is other aperture for enjoyment of light and air on the
northern side of his house. At the same time it has been highlighted that the
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plaintiff while appearing in the witness box has not supported his right by
way of prescription. He stated that the window was opened in the year 1998
meaning thereby he could not set up the claim that he had been
enjoying the right of air and light for the last 20 years. Again it would be
appropriate to observe that right of privacy is paramount about which a
good neighbourer is obliged to consider. No body has right to open any
door or window for peeping into privacy of others but it is also settled that
the defendant could not stop him from opening the door or window in his
own house, but at the same time he could raise the wall to protect his
privacy over his own land. Similar question arose as far back as in the year
1973 in case Registered Society, Arya Priti Nidhi Sabha Punjab Gurudatt
Bhawan, Jullundur City and others vs. Paras Ram, 1973 The Punjab Law
Reporter 671, wherein it was observed as under :-
“.. when a person opens a door in his own wall, he does not do
so in another man’s land. The wall, in which the door is
opened undoubtedly exists in his own land and the door, being
admittedly in the said wall, cannot be stretched into the
neighbour’s land and opened there. Secondly, by the mere fact
that somebody opens a door in his own wall, he does not,
thereby, interfere with the right of his neighbour to use his
land without obstruction. The existence of the door, by itself,
cannot, entitle the opener of the door to pass over the land of
his neighbour as a matter of right, or trespass into it. It is not
necessary that simply because of a person has opened a door,
he should be permitted by his neighbour to use it for going into
or coming out of it. If the neighbour so likes, he can prevent
him from using the door from the very first day and if the later
still insists on doing so, he will be guilty of criminal trespass.
It would not, therefore, be correct to say that the mere
existence of the door, would naturally enable the person
opening it to pass over the neighbour’s land towards which it
opens or to trespass into it.”
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Thus, after examining the case from any angle, it could well be
observed that the plaintiff has failed to establish that he could stop the
defendant from raising the wall over his own land nor he could establish his
right of easement by way of necessity or prescription.
Consequently, I see no reason to interfere in the impugned
judgment, therefore, the same stands dismissed.
July 11, 2008 (A.N. Jindal) deepak Judge