Final Order 1

Order Details: COPY OF ORDER
Pdf Text: CS SCJ No. 791/2025
JILE SINGH Vs. BABU & ORs.
CNR No. DLCT030026962025
05.05.2025
Fresh suit received by way of assignment. It be
checked and registered.
Present : Plaintiff with Ld. counsel Sh. Firoz Alam.
Submissions heard. Record perused.
The present suit has been filed by the plaintiff
seeking permanent injunction restraining defendants no.1 and 2
their agents, employees, relatives etc. from raising any further
unauthorized construction against the DMC Act and building
bye-laws without the sanction plan, in the property bearing No.
3046, Shankar Gali, Turkman Gate, Delhi-110006 (hereinafter
referred to as ‘suit property’) and mandatory injunction thereby
directing defendant no.3 to take immediate action against
defendants no.1 and 2 and to demolish the illegal and
unauthorized construction having been raised by defendants no.1
and 2 in the suit property.
Brief facts as stated in the plaint are that the
property of the plaintiff is just opposite to the suit property and
that defendants no.1 and 2 are owners of the suit property. It is
further stated that defendants no.1 and 2 in connivance with
defendant no.3 are raising illegal and unauthorized construction
in the suit property with intent to make it a commercial complex
without any sanction plan. That people of the locality have filed
various complaints against defendants no.1 and 2 before the
police authorities and defendant no.3. That the said illegal
Contd….2/-
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CNR No. DLCT030026962025
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construction would stop light and fresh air, other easementary
rights of the plaintiff and other persons of neighbourhood.
Plaintiff sent complaint dated 15.04.2005 to defendant
no.3/MCD, but to no avail. Hence, the present suit.
In
Rajendra Motwani & Ors. vs. MCD & Ors., RSA
No.243/17 dated 16.10.2017, Hon’ble Delhi High Court has
categorically held that:-
“
8. The second reason for rejecting the argument
urged on behalf of the appellants/plaintiffs is that an
illegal construction in itself does not give any legal
right to a neighbor. An illegal construction always no
doubt gives locus standi to the local municipal
authorities to seek removal of the illegal
construction, but, a right of a neighbor only arises if
the legal rights of light and air or any other legal
right is affected by virtue of the illegal construction
of the neighbor. Legal right to light and air is only in
terms of Section 15 of the Easements Act, 1882
which requires a cause of action to be laid out and
proved that right to light and air has been enjoyed for
20 years and only on completion of 20 years there is
a right to acquisition by prescription in the
easementary rights. It is relevant to note that even
after acquisition of easementary rights of
prescription, yet, right to injunction for a neighbor is
not absolute and is covered by Section 33 of the
Easements Act which requires that disturbance to the
easementary rights must actually cause substantial
damage to a neighbor and the infraction materially
diminishes the value of the dominant heritage with
the fact that there is material interference in the
physical comfort of the neighbor of living in his own
house or prevents the neighbor from carrying on his
accustomed business in the dominant heritage/his
own house. All these are factual aspects and
admittedly there is no cause of action which is laid
out in the plaint in terms of Sections 15 and 33 of the
Easements Act that right to easement of the
appellants/plaintiffs has become absolute as it has
been enjoyed for 20 years and that in fact after rights
to easement are acquired by prescription there is also
Contd….3/-
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CS SCJ No. 791/2025
JILE SINGH Vs. BABU & ORs.
CNR No. DLCT030026962025
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a substantial damage to the appellants/plaintiffs or
there is material interference in the physical comfort
of the appellants/plaintiffs or the appellants/plaintiffs
being prevented from carrying on his accustomed
business in their own dominant heritage/own
property.”
In view of the law laid down by Hon’ble Delhi High
Court as discussed above, it is pertinent to mention that no cause
of action has arisen in favour of the plaintiff only on alleged
unauthorized construction, to file the present suit before this
Court.
From the perusal of the photographs annexed
alongwith the plaint, it cannot be ascertained that the suit
property will be used for commercial purpose and the same will
cause nuisance to the general public including the plaintiffs. It is
a mere apprehension of the plaintiffs and there is nothing
whatsoever to butteress the claim of the plaintiff.
In the case in hand, Ld. counsel for the plaintiff has
argued that the law laid down in Rajendra Motwani (supra) is not
applicable as in the present case, violation of easementary rights
has been alleged. However, there is no averment whatsoever
since when the plaintiff has been enjoying the free use of light
and fresh air. There is no averment whether the threshold period
of 20 years of uninterrupted and continuous use of sunlight and
air has elapsed or not for the easementary to fructify.
Otherwise also, in
Dr. K. Panduranga Nayak Vs.
Smt. Jayashree & Ors., AIR 1990 KANT 236, Hon’ble Karnataka
High Court has held that:-
“As far as natural right to the flow of light and air is
concerned every owner or occupier of a land has a natural
Contd….4/-
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JILE SINGH Vs. BABU & ORs.
CNR No. DLCT030026962025
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right to receive and enjoy so much light and air as come
vertically thereto and to open doors and windows in his
own wall which adjoins another's land, unless he is under
a legal obligation not to do so. Every man is free, in the
lawful enjoyment of his own property, to take and use so
much light and air as come thereto. And his neighbour's
right is the same as his own, but these rights of enjoyment
are mutually qualified, for neither can prevent the other
from making such lawful use of his land as he pleases. A
man who is deprived of light and air by an act of his
neighbours, as by the erection of a building, has still the
right to, so much light and air as come to him and he
cannot complain of the obstruction however serious,
unless he can establish his title to an easement of light and
air. The natural rights of property, as defined by the maxim
"cujus est solum ejus est usque ad coelum" enable a man
to build as he pleases on his own land. Thus right to
vertical light and air is recognised but as far as light and
air coming laterally is concerned the decision of the
Madras High Court is relied upon by the respondents'
counsel. In the case of Moidin Kunhi v. Gopalakrishna, ,
Ramaswami, J. in the matter of natural right and
easementary right of light and air observed that the right to
light and air may be either a natural right forming one of
the incidents of property or it may be an easement. They
are acquired under different circumstances though very
similar. Both of them constitute an adjunct to and are
inherent in land "ex jure naturae" and exist "prima facie"
in all cases as between the landowner and his neighbour
and secondly they can be acquired as an easementary
right. The natural corollary of these natural rights is that
they are subject to the rights of adjoining owners who for
the benefit of the opportunity have and must have rights in
relation to the use and enjoyment of their property that
qualify and interfere with those of their neighbours' rights
to use their property in the various ways in which property
is commonly and unlawfully used.”
Plaintiff is entitled to the air and light falling into his
property vertically and not laterally. It is not the pleading of the
plaintiff that in case, construction in the suit property is allowed
to carry on and completed, the property of the plaintiff shall be
rendered useless or the value/use of the property shall be
diminished.
Contd….5/-
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JILE SINGH Vs. BABU & ORs.
CNR No. DLCT030026962025
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Therefore, in view of the law discussed above, no
cause of action has accrued in favour of the plaintiff.
In view of the law laid down by Hon’ble Delhi High
Court as discussed above, no cause of action has arisen in favour
of the plaintiff only on alleged unauthorized construction, to file
the present suit before this Court.
In view of the discussion above, this Court comes to
a conclusion that there is no cause of action in favour of the
plaintiff in view of the law discussed above and therefore, the
present plaint is rejected in terms of Order 7 Rule 11 (a) CPC
being devoid of cause of action.
File be consigned to Record Room after due
compliance.
(Rinku Jain)
ASCJ-01 (Central)/Delhi
05.05.2025
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