Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1353-18 Suit 4637-18
CNR NO. MHCC010042962018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 1353 OF 2018
IN
S.C. SUIT NO.4637 of 2018
Shri Sandeep Sudhakar Kerkar ] .. Plaintiff.
Versus
1. Mrs. Bharti Pralhad Patil ]
2. Mrs. Kusum Vishnu Patil ] .. Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 20th April, 2018.
Adv. Sanjay Kulkarni for the plaintiff.
Adv. Omar Shaikh for the defendants.
ORDER
The plaintiff has taken out this notice of motion for
restraining the defendants from carrying out the illegal construction in
the rooms adjacent to the suit room, thereby blocking the air, light, way
ingress and egress of the plaintiff. Further the relief is sought that the
defendant No.1 be directed to demolish the illegal construction or
municipal authorities may be directed to demolish the same.
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2. The plaintiff’s case in brief is that the suit is filed for
perpetual injunction. The plaintiff has stated that his mother was
owner of the suit premises and she has transferred the same in his
favour by Gift Deed dated 29/10/2014. His mother was occupying the
suit premises from 2007. The suit premises was purchased by his
mother from the defendants. She was enjoying the premises without
any disturbance. The defendant Nos. 1 and 2 have started illegal
construction in such a manner that it will block air, light, way and also
ingress and egress to the house of the plaintiff. It will also endanger the
human life. Plaintiff also addressed many complaints to the Municipal
Corporation, but no action has been taken. The defendants are
pressurizing the plaintiff to leave the suit premises. Due to the acts of
the defendants, his right to have air and light are affected and therefore
the instant notice of motion.
3. The defendants filed their reply denying therein the
contents of the notice of motion. It is stated that the plaintiff is not
enjoying the right of air, light and way for a continuous period of 20
years. So he does not get easementary right by prescription. The
plaintiff has not joined Mumbai Municipal Corporation as party and
therefore the relief sought cannot be claimed. It is only the Mumbai
Municipal Corporation, which can declare the structure as
unauthorised. There is no documents to show that the alleged
construction is unauthorised. It is denied by the defendants that the
they are carrying out any construction, which will block the air, light
and right of way. It is stated that they are carrying out only tenanted
repairs by plastering the wall and for the same no permission is
required from the Mumbai Municipal Corporation. It is stated that the
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suit premises are situated between the rooms of defendant Nos. 1 and 2
and that there was proper way, air and light to the plaintiff. It is denied
that they have increased height of their rooms. Photographs filed on
record are also disputed.
4. Heard Advocate for the plaintiff and defendants. Perused
the record of the case.
5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the plaintiff has made out prima
facie case ? : Yes.
(2) Whether balance of convenience lies in
his favour ? : Yes.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : Yes.
(4) What order ? : As per final order.
REASONS
Point Nos.1 to 3:
6. The plaintiff has come out with a case that he is residing in
the suit premises, which fact is not disputed by the defendants. It is
also undisputed fact that the suit premises are situated between the
houses of defendant Nos. 1 and 2. The defendants have also submitted
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that they are carrying out the construction. The contention of the
defendants is that they are carrying out only tenanted repairs, for which
no permissions is required from the Mumbai Municipal Corporation.
7. The Advocate for the defendants at the outset has
vehemently submitted that the plaintiff is residing in the suit premises
since 2009 and therefore the period of 20 years as prescribed under
section 15 of the Easement Act, is not completed and therefore no right
exists in favour of the plaintiff. The Advocate for the plaintiff
submitted that he is seeking relief in respect of his easement of
necessity. He has submitted that air and light and right to way are
necessary for him to enjoy the property. I find substance in the
arguments of the plaintiff that he is seeking the relief in respect of
easement of necessity. Hence, there is no need to establish that the said
right was enjoyed for continuous period of 20 years.
8. The plaintiff has filed the photographs on record, which
shows that fresh construction of bricks and cement is being carried out
on the premises of the defendants. The defendants have denied the
photographs, but they have not come out with any evidence to show
that what construction is being carried out by them. The defendants
have submitted that they are carrying out tenanted repairs i.e.
plastering of the wall. However, the photographs of the plaintiff depicts
different picture that walls are being laid for extending the height. As
per the Mumbai Municipal Corporation Act, 1888, the tenanted repairs
does not include change in horizontal and vertical existing dimensions
of the structure. So, when the photographs filed by the plaintiff shows
that there is change in vertical dimension then it was for the defendants
to show that no construction in such a manner is carried out. The
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plaintiff has given complaints to the Mumbai Municipal Corporation,
but no action is being taken. There is also no communication that the
said construction is legal and so no action is being taken. The
defendants have submitted that the plaintiff has not produced any
document to show that the said construction is unauthorised, but the
plaintiff did approach the Municipal Authorities, before coming to the
court.
9. The defendants have submitted that Mumbai Municipal
Corporation is not made party to the present suit, as it is the Municipal
Authorities, who will decide that the construction is authorised or
unauthorised. In the present case suit the plaintiff is seeking easement
of necessity of air and light. Therefore, the said right can be enforced
against the defendants in the present case. As Mumbai Municipal
Corporation is not made party, therefore no directions can be issued to
the Municipal Authorities for demolition of the suit premises. But, as
plaintiff has come out with a primafacie case that due to construction,
his right of easement of air and light is affected. The said relief can be
granted in favour of the plaintiff, as plaintiff will suffer irreparable loss
and balance of convenience is also in favour of plaintiff. The
defendants can very well approach the Municipal Authorities for
carrying out any construction, if they want. At this primafacie stage, it
appears that the defendants are not carrying out tenanted repairs. In
these circumstances, I find that the defendants need to be restrained
from carrying out further construction. However, at this stage I am not
inclined to direct the defendants to demolish the construction made by
them. In these circumstances, I answer Point Nos. 1 to 3 in affirmative
and proceed to pass the following order.
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ORDER
i) The notice of motion is partly allowed.
ii) The defendants are hereby restrained from making any construction
in their rooms which are adjacent to the suit premises, without securing
proper permission from the concerned authorities.
iii) The relief as prayer clause (b) is refused.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 20/04/2018
Dictated on: 20/04/2018
Transcribed on: 23/04/2018
Signed on: 23/04/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
23/04/2018 at 5.30 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
20/04/2018
Judgment/Order signed by P.O.on 23/04/2018
Judgment/Order uploaded on 23/04/2018
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