BISHWA NATH TEWARI Vs. BHAGWATI PRASAD SIOTIA AND SONS

JUDGEMENT

(1.) This Civil Revision is so preferred by the applicant Shri Biswananth Tewari and others U/S. 115 read with Section 151 CPC against the order dated 23.5.96 passed in Misc. Appeal No. 13/96 by the Assistant District Judge No. 2, Kamrup, Guwahati by virtue of which the learned appellate Court set aside the order dated 2.5.96 passed by the learned Munsiff in Misc. (J) No. 84 of 1996 and granted injunction so sought for U/O.43 Rule l(r) CPC on the grounds detailed in the impugned order.

(2.) The facts of the case, in short, as giving rise to this Civil Revision petition are as follows The plaintiff- respondents, i.e. Mrs. Bhagawati Prasad Siothia & Sons represented by Shri Bhagawati Prasad Siothia, it transpires, filed the Title Suit against the applicant- defendant bearing TS 131/96 for the declaration that the plaintiff-respondent was and is entitled to the use of natural light and air by way of easement from the northern side of the land and building as described in Schedule- 'A' of the plaint as the applicant-defendants have no right to construct their building over the land as described in Schedule 'B' to the plaint without leaving 5' side margin from the southern side of the land of the applicant-defendants. It was claimed by the respondent-plaintiff that in the heart of the Gauhati Town at SRCB Road, Fancy Bazar, Guwahati -1 the residential house was so constructed by the respondent - plaintiffs family long back in the year 1961- 62 as detailed in Schedule-A at the foot of the plaint and the said building has got now six floors known as Radha Bazar for commercial and residential purposes and that parallel to the same plot the applicant -defendant has got land as detailed in Schedule 'B' of the plaint and the cause of action arose when sometime in December, 1995 the applicant-defendants started construction of building over their land from the respondent-plaintiffs side without leaving side margin of 5' as per the provisions of Zoning Regulation for Gauhati Master Plan Area which has been framed under the provisions of Assam Town and Country Planning Act, 1956 and as per Table II of the said Regulation a person is bound to keep side set back of 5'or 1.5 meter even in high density residential zone. The title suit was so filed alongwith a prayer for grant of injunction by filing a separate petition U/0.39, Rules 1 and 2 CPC read with Sec. 36 of the Specific Relief Act. 1963 and the main ground so taken for grant of injunction was that because of the applicant-defendants not leaving 5' side space while starting construction over his land detailed at Schedule - B of the plaint, there will be no access of natural light and air to the residential building of the respondent-plaintiff and if such construction undertaken by the plaintiff- defendant is not restrained in such circumstances all the rooms in the building of the respondent-plaintiff would become completely dark for ever rendering it not fit for human habitation and causing serious health hazard and the respondents-phintiffs room would become hot gas chamber and his tenants would be compelled to abandon the residential/ commercial rooms. Objection petition was filed to the prayer for grant of interim injunction copy of which is filed marked is Annexure- E in which the applicant-defendant stated that since there was vague assertion put by the respondent- plaintiff with regard to the deprivation of the natural light and air in the rooms of the building, on no account it can be said that the plaintiff- respondent had acquired right of easement by prescription and furthermore the Indian Easement Act being not applicable in the State of Assam, construction of building by the applicant-defendant in strict conformity with the permission granted by the competent authority complying with the master plan, would in no way give any right seeking grant of interim injunction when particularly the respondent- plaintiff had failed to make out a prima facie case or balance of convenience in his favour. The applicant-defendant had also taken the ground that there is no question of the respondent-plaintiff suffering any irreparable loss and since there is absence of any right of easement by prescription in the instant case by his in any way acquiring the status of "dominant heritage" the grant of interim injunction as prayed for would play more mischief and greater inconvenience to the applicant-defendant than withholding the prayer so made for grant of injunction in the back ground of the facts and circumstances of the case It further transpires that the learned Munsiff in the Misc.petition so filed for grant of interim injunction by his order dated 2.5.96 dismissed the prayer of the respondent-plaintiff for grant of ad-interim injunction which resulted into the filing of the Misc.appeal by the respondent-plaintiff U/0- 43. Rule l(r) CPC and the learned Asstt. Dist. Judge No. 2 by his order dtd, 23,5.96 has set aside the order so passed by the learned Munsiff and has held that since the respondent-plaintiff had prima facie case, balance of convenience in his favour with that of the on-grant of interim injunction would cause irreparable loss to him allowed the Misc. Appeal and granted injunction holding the applicant-defendants as not to proceed wit the further construction over the B Schedule land without leaving 5 margin till disposal of the suit with further observation that considering the circumstances of the case the suit be finally decided without any further delay and at the earliest. It is against this order that this Civil Revision is so preferred by the app] icant-defendants on the ground mentioned in the petition,

(3.) Heard Mr.B.K.Das, the learned Sr. Counsel for the applicant-defendant and Mr. O.K. Bhattacharjee, the learned Sr.Counsel for the respondent-plaintiff.