Prasenjit Mandal, J. - (1.)CHALLENGE is to the order dated May 19, 2009 passed by the learned District Judge, Malda in Misc. Appeal No.4 of 2009 thereby setting aside the order dated March 5, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Malda in Title Suit No. 16 of 2009.
(2.)THE plaintiff/opposite party herein instituted a suit being Title Suit No. 16 of 2009 for declaration of title, permanent injunction and other reliefs against the petitioner before the learned Civil Judge (Junior Division), 1st Court, Malda. THE plaintiff also prayed for mandatory injunction directing the petitioner to demolish the construction already made on his land. At the time of filing of the said suit, the plaintiff prayed for temporary injunction. THE defendant entered an appearance and he contested the application for temporary injunction. Upon hearing both the sides, the learned Trial Judge rejected the application for temporary injunction filed by the opposite party. Being aggrieved, the plaintiff filed a misc. appeal being Misc. Appeal No.4 of 2009 and that misc. appeal was allowed by the impugned order restraining the petitioner from raising any construction on 'Kha' schedule property appended to the plaint. Being aggrieved by such order, the defendant has come up with this application.
Now, the question is whether the impugned order should be sustained.

Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff/opposite party is the owner of the 'Ka' schedule property as described in the schedule of the plaint. The defendant/petitioner herein is the owner of the 'Kha' schedule property which is adjacent to the 'Ka' schedule property. The defendant has been raising construction on his own land, that is, on the 'Kha' schedule property after obtaining sanctioned plan from the concerned Municipality and the said sanctioned plan clearly indicates to leave 3 feet side spaces so that the air and light of the opposite party are not resisted because of such construction accordingly as per photograph as shown to the Court by the petitioner.

(3.)AS per photograph shown to the Court, the defendant/petitioner herein had already raised construction up to the 1st Floor. Now, the plaintiff has contended that the defendant did not leave side space as per provisions of the West Bengal Municipal Building Rules, 2007. So, the suit has been filed for the reliefs already stated.
Mr. Bidyut Kr. Banerjee, learned Senior Advocate appearing on behalf of the defendant/petitioner has contended that the learned Trial Judge has disposed of the application for temporary injunction rightly. But the Lower Appellate Court has failed to appreciate the situation. On the basis of the materials on record, he has contended that the infraction of air and light as alleged by the adjacent land owner is not tenable at all. He has contended that his client is making construction upon obtaining the plan duly sanctioned from the concerned English Bazar Municipality. There is no dispute about it. The sanctioned plan clearly lays down for leaving side space towards the sides of the land of the plaintiff and one Commissioner was appointed and it was found on inspection* that the petitioner has left clearly 3 feet side space for making the construction. Even, the safety tank constructed by his client is also made underground within his premises and there is a clear space of 2 feet 11 inches at that side from the end of the construction.