- (1.) THIS is a plaintiff' appeal arising out of a suit for a perpetual injunction to prohibit the defendant from constructing the projection (Chajja) from his house over the lane in accordance with the sanction alleged to have been obtained by him from the Municipal Board, Sambhal. The plaintiff came to the Court on the ground that his easementary right to get light and air into his house, would be curtailed by the proposed construction. The second ground on which he sought the injunction was that the street over which the defendants intended to make the construction was only about five feet wide and the bye-laws of the Municipal Board prohibited the making of any projection over such a lane. The lane runs between the houses of the plaintiff and the defendants.
(2.) THE defendants contested the suit on the ground that the construction of the projection was not likely to affect the plaintiff' right to set light and air, and that the sanction obtained from the Municipal Board was valid and legal. The trial Court held that the plaintiff' house had an open Chabutra and the construction of the Chhajja was not likely to affect the plaintiff' right of getting sufficient light and air. So far as the question about validity of the sanction is concerned, the trial Court held that it was violative of the bye-law dealing with projections over narrow streets. However, on the ground that the plaintiff was not likely to suffer any special damage because of the construction of the Chajja, the trial Court dismissed the suit. The plaintiff went up in appeal. The lower appellate Court endorsed the finding of the trial Court that the plaintiff was not likely to suffer any substantial damage by the construction of the projection so far as his easementary right to get light and air was concerned. As regards the question about violation of the bye-law was concerned, the lower appellate Court expressed the view that it was not necessary to go into the question, but later on held that as the bye-law was not made for the purposes of giving any benefit to citizens living in the locality, the plaintiff could not maintain the suit or claim injunction, even if the proposed construction was to be made in violation of the bye-law. On these findings the appellate Court dismissed the suit. Plaintiff has now come up in appeal to this Court, challenging the decree of the appellate Court.
(3.) LEARNED counsel for the appellant conceded that the finding that the easementary right of the plaintiff about getting light and air was not affected was a finding of fact based on evidence which could not be challenged in this appeal. His contention is that no person can be permitted to make constructions in violation of a bye-law and if he attempts to do so it is open to the citizen to move the Court to prohibit him from violating the bye-law. In support of his submission he has relied on the decision of the Calcutta High Court in Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148. In that case there was a bye-law which required a person making constructions to leave certain open space. The defendant wanted to make constructions without leaving such space. The suit had been filed by a neighbour. The Court held that such a suit was maintainable for an injunction to require the defendant not to violate the bye-law.;