SHAMBHUPRASAD UMIASHANKAR Vs. LALBHAI BHIKHABHAI SHAH

JUDGEMENT

(1.) THE parties in this case are the owners of adjoining houses in Ahmedabad. THE defendants-respondents raised the height of their house and in so doing cut off a pankh or weather-board projecting from the side wall of the plaintiffs' house over defendants' land. It appears that this was mostly done after the suit was filed. THE plaintiffs sought an injunction against the cutting of the pankh and for the restoration of what had been cut. THEy also alleged that the defendants had made certain encroachments on their wall and prayed for the removal of these.

(2.) THE trial Court found that there had been a slight encroachment on the first floor and ordered its removal, but it dismissed the suit otherwise. THE parties were ordered to bear their own costs. In appeal the Assistant Judge dismissed the appeal with costs.

(3.) THE trial Judge thought that an injunction was unnecessary because pecuniary compensation would suffice. But he did not award any pecuniary compensation. THE Assistant Judge thought that the plaintiffs had no grievance at all. He says in this connection : THE column of air space below and above this (the pankh) belonged to the defendants. Now, if defendants build over it and in doing so completely protect the plaintiff's wall then he can have no grievance. THE very justification for the pankh was the protection of this wall, and if that is given by the defendants' wall the plaintiff can have no grievance whatever. Whatever relief he could have got before the pankh was actually cut, he cannot have any grievance after it is cut and the defendants build their wall right through and protect plaintiff's side wall.