Karnataka High Court
S. Narayana Rao vs R. Narasinga Rao (Deceased By Lrs) on 31 May, 1994
Equivalent citations: AIR1995KANT11, ILR1994KAR1947, 1994(2)KARLJ650, AIR 1995 KARNATAKA 11, (1995) 1 CIVILCOURTC 270, (1994) 2 KANT LJ 650, (1994) 2 CURCC 634
JUDGMENT
1. This Second Appeal is directed against the Judgment and Decree passed in R.A. 6 of 1974 on the file of the District Judge, Bellary wherein the First Appellate Court while dismissing the appeal filed by the defendants confirmed the decree passed in O.S. No. 137/1974 by the Court of the Principal Munsiff, Bellary in favour of the plaintiff.
2. Parties are described as in the original cause.
3. The plaintiff filed a suit against the defendant seeking permanent injunctive relief against the defendant restraining him from putting up any sort of construction on the suit schedule open space.
4. Schedule is detailed as herein:
Open space measuring about 15 feet North to South and 6 feet East to West immediately (on the western side) behind and adjacent to the plaintiffs house bearing No. 53, V Ward Lalakaman, Brucepet, Bellary. Boundaries to the open space has been described as:
East - Plaintiffs house bearing D.No.53;
West - Public land;
North - Open space and house of defendant;
South - House of janakiramaiah.
5. In para V of the plaint, plaintiff has made out his substantive case on the following lines:
"There are two windows and water-spouts in the western wall of the plaintiffs house. The rain water falling on the western portion of the roof of the plaintiffs house is drained through these two water spouts. The two windows referred to above are fixed to two rooms on the western side. One room is used as a kitchen and the other room, as puja-cum-store room. These two rooms receive light and air only through these two windows, There is no other way of getting light and air to these two rooms. The plaintiff is enjoying this right to receive light and air through these two windows since 1928. Even prior to 1928 his predecessors in title were enjoying the said right. Similarly, he and his predecessors in title have been enjoying the right to drain rain water through the two spouts since time immemorial."
Alternatively plaintiff has pleaded a case for nuisance on the following lines paragraph VII of the plaint reads:--
"VII. The plaintiff submits that the suit schedule open space does not belong to the defendant. He has absolutely no right, title or interest in the said, open space. Even if the suit open space does not belong to the plaintiff and is a part of the public lane the defendant has no right in law to put up septic latrines or any other construction on the said open space. The construction of septic tank latrines on the suit open space will cause nuisance and annoyance to the plaintiff and other members of his family. Such a construction will also weaken the foundation of the western wall of the plaintiffs house. Any construction on the suit open space will obstruct passage of light and air through .the two windows, in the western wall of the plaintiffs house and also free flow of rain water through the two water spoutes. The defendant has therefore no right in law put up any construction on the suit open space."
6. The plaintiff's case in short is that he has acquired easementary right by prescription by enjoying for more than 20 years the free flow of air and light to the schedule property described in the schedule and that defendant by constructing the septic latrines close to the schedule property would be obstructing the free flow of air and light to the plaintiffs and thereby causing material injury to the confortable use of schedule property by the plaintiff and further the two sceptic latrines if constructed would be nuisance and annoyance to the plaintiff and members of his family. Defendant has contested the suit by pleading that the (1) plaintiff has not acquired the easementary right; (2) injunctive suit for nuisance based on prescriptive easement right regarding the inflow of air and light through the windows without a declaratory relief as not maintainable; (3) that there is no obstruction to free flow of air and light to the plaintiffs kitchen and Pooja room through windows: (4) That the suit is bad for nonjoinder of necessary party; (5) That no nuisance would be caused since sceptic toilets would be constructed under most modern and scientific lines; (6) Since plaintiff has no title on the disputed property, plaintiff has no right to claim any relief as there is no actionable wrong.
7. The plaintiffs have examined 3 witnesses PW 1 to PW 3 and got nine documents marked as Exhibits P-l, P-9 and defendant has examined himself as D.W. I and got nine documents marked as Exhibits D-l to D-9.
8. The Court of first instance framed the following issues:
(1) Whether the plaintiff proves his title over the suit open space ?
(2) Whether the defendant proves his title over the suit open space ?
(3) Whether the plaintiff proves that he has acquired the right by prescription of getting light through the two windows and the right of leaving rain water through the two spouts ?
(4) Whether the plaintiff proves that the foundation.of house would be weakened if the defendant constructs the latrine ?
(5) Whether nuisance would be caused to the plaintiff by the latrines ?
9. The Court of first instance after perusing the evidence on record decreed the suit in the plaintiffs favour. The defendant being aggrieved preferred an appeal before the District Judge, Bellary. Proceedings being numbered as R.A. 6/1981 and the first Appellate Court after perusing the materials on record confirmed the findings of the Court of the first instance and dismissed the appeal. Defendant being aggrieved has filed this Second Appeal.
10. The Court while admitting this Second AppeaLhas formulated the following points as 'substantial questions of law' for determination:
(1) Whether a suit for permanent injunction should have been maintained by the plaintiff without seeking declaration with regard to the alleged prescriptive right of easement alleged to have been acquired by the plaintiff?
(2) Whether the lower appellate court is justified on law on passing a decree without the plaintiiff establishing that he is the owner of the suit property?
(3) Whether the Courts below are justified in law in allowing the plaintiff to plead and lead evidence that the disputed site belonging to the Government without making the Government as a party ?
It is to be noted that the plaintiff in original suit proceedings has not pressed the first issue for consideration.
11. During the pendency of this second appeal, the plaintiffs have filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking amendment of the plaint on the following lines:
(1) At the end of para V of the plaint:
"In view of what is stated above the plaintiffs have acquired an easementary right to receive the light and air through the two windows referred to above and the easementary right to drain rain water through the two spouts of prescription and the defendant has absolutely no manner of right whatsoever to interfere with the aforesaid easementary rights of the plaintiffs."
(2) At the end of para VII:
"And the defendant by putting up any such construction cannot interfere the plaintiff's prescriptive rights of easement to receive the light and air through two windows on the palintiffs western wall and the plaintiffs prescriptive right of easement to have free flow of rain water through the two water spouts."
(3) Addition in para XI of the prayer column:
"(a) Declare that the plaintiff has acquired a right of easement by prescription to receive the light and air through the two windows on western wall of the plaintiffs' house and to drain the rain water through the two water spouts located in the western wall of the plaintiffs house."
12. The defendant has filed counter and has stated that the application seeking amendment is belated and has no merits and the same to be rejected, since it introduces a new case and further the plaintiff should not be permitted to amend the plaint to overcome institutional defect and to fill up the lacunas in the pleadings and nature of the relief sought by way of amendment is barred by period of limitation.
13. The defendant submits that by way of amendment, court should not permit the plaintiff to raise a new plea and the same should not be permitted at the second appellate stage unless ail the materials necessary to decide new plea is already there. The plaintiff contends that nature of amendment would not alter the character of the suit and it does not amount to any new case to be decided. Nature of relief sought for by way of amendment is only clarificatory in nature. Further it is argued that rules of procedure are not by themselves an end but means to achieve the ends of justice. Counsel invites the court's attention to ratio decided by the Supreme in Jai Jai Ram Manohar Lal relevant observations are found at para 5 which reads --
"..... Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs."
14. Since both the parties have understood the pleadings and have led evidence 1 am of the view that no prejudice would be caused by allowing the application filed by plaintiffs seeking amendment of pleadings and relief. As stated above circumstances do not warrant any framing of an additional issue and independent finding thereon. Hence application filed under Order 6, Rule 17 of C.P.C. is allowed. Reference is made to a ratio decided in A. K. Gupta Valley Corporation Admittedly plaintiff has given up his case regarding title of the disputed suit schedule property.
15. Court of the First instance while assessing the documentary evidence produced by the defendant regarding his right, title and interest in the suit schedule property has clearly discussed at length the nature of the property purchased by defendants predeces-sors-in-title and has given an emphatic finding that the 'Angalam' mentioned in the deeds produced by the defendant would indicate the boundary of the property purchased and not Angalam itself as being the subject maner of purchase. Further the Court has observed as to how at every stage of subsequent sale transaction attempts have been made to include the area described as Angalam as being part of the sale transaction which on fact does not reflect the actual area purchased by defendants predecessors-in-title. This is at best appreciation of the evidence adduced by the defendant to prove his right, title, over the schedule property. The contention advanced by the defendant that the court should not have embarked upon an enquiry as to the title of defendant on the schedule property in view of the stand taken by the palintiff in getting the first issue deleted does not stand to reason since defendant had taken a definite stand that suit schedule property belonged to him and that he had every right to put up construction of sceptic latrines in his own property and that the plaintiff cannot maintain suit seeking injunctive relief and it is further contended that since the suit was only for permanent injunction, the courts etred in deciding the title of the suit schedule property and giving a finding that the title having vested in a third party namely the Municipality and declaring the same as 'public lane'. What is to he seen is irrespective of the fact to whom the schedule property belongs, the question to be adverted to is whether acts of commission on the part of the defendant in putting up sceptic latrines in the schedule property amounts to obstruction to free flow of air and light to the suit schedule property which is alleged to have been enjoyed by the plaintiff and his ancestors from time immemorial and further the same amounts to annoynace and nuisance. As regards servient owners who is alleged to be left out it is not suggested that any of them was a party to the act of obstruction complained of or was in any way resisting the plaintiffs claim for free flow of light and air. The Court of the first instance in paragraphs 8 and 9 of the judgment has in detail discussed the evidence on record on this aspect and has recorded its findings in favour of the plaintiff. The First Appellate Court also in paras 11 and 12 of its Judgment while appreciating the evidence on record has concurred with the findings of the Court of the First instance. Both the Courts have given cogent reasons in arriving at conclusions. The appellant's counsel argued that these findings are not based on proper appreciation of evidence but in my it is to be stated that they are findings of facts and not proper for this Court to disturb the same since appraisal of evidence after taking into consideration of the entire circumstances in the case is a finding of fact.
16. Another important aspect that is to be noted in this case is whether the act complained constitutes nuisance and whether the reliefs sought for is premature since no construction have been put up; and that too annoyance or nuisance complained would depend upon the user and not by putting up structures. Whether the act constitutes nuisance cannot be determined merely by an abstract consideration of the act itself but by reference to all circumstances of particular case. The time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously or in the reasonable exercise of its rights and the effect of commission, that is whether transitory or permanent, occasional or continuous, so that it is a question of fact whether or not a nuisance has been committed. Forseeability is pre-requisite- and fault is in failing to abate the nuisance the existence of which the defendant is or ought to be aware as likely to cause damage to his neighbour. Defendant will be liable if he can foresee some possibility of his activities interfering with his neighbour's land even though much greater and unreasonable degree of interference which in fact occurs is not forseeable. Defendant is liable if his inteference with his neighbour's land is of sufficient gravity to constitute nusance in law and if he is responsible for the interference in the sense that he knew or ought to have known of a sufficient likelihood of its occurrence to require him to take steps to prevent it.
17. The conduct on the part of thedefendant, ifit is deliberate in the sense that the perpetrator knows he is interfering with the neighbour but believes erroneously that he is not going beyond the degree of interference, even in such cases, the defendant is liable. Defendant's counsel contends that some intrusion by smelt (noise or dust) is the inevitable price of living in an organised society in proximity to one's neighbour's land. Indeed the very nuisance one complains of as the ordinary use of his neighbour's land he himself will create in Ihe ordinary use of his own, reciprocal nuisance or of comparatively trifling in character and protection of such interest must be approached with an attempt to balance the competing rights of neighbours, a process of compromise, a rule of give and take, of live and let live.
18. What is to be noted is that on the other hand if after balancing competing interest of parties if the Court considers that interference is excessive by any standards, then merely because the defendant has taken all reasonable care and reduces it to minimum that by itseif cannot be defence since irreducible minimum is itself nuisance.
19. Once the plaintiff proves that he has suffered a substantial degree of interference the conduct of the defendant in general is irrelevant and the convenience of the locality and care used by the defendant to avoid damage will not suffice him to absolve him from liability.
20. The plaintiffs right is paramount and if the occupier of servient tenement cannot prosecute his activities without infringing it, he must not perform them at all. The function of the action is to remedy the infringement of a right and not to compensate for the commission of a wrong. It is to be stated that an injunction to restrain the defendant from commencing or continuing an activity causing or threatening an interference is one of the remedies available and hence the plaintiffs suit seeking injunctive relief is maintainable since the primary purpose of the remedy is to protect the plaintiff from further damage and the Court is not principally concerned with the defendant's culpability. All that the Court is concerned with is the question "Should the defendant be told to stop interference with plaintiffs right"? Whether or not the defendant knew the smell or noise or the like when it first began to annoy the plaintiff does not matter; he becomes aware of it at the latest when the plaintiff brings his claim before the Courl.
21. Questions such as reasonableness of the conduct of the defendant, extent of harm, nature of the locality, utility of the defen-dant's conduct, abnormal sensitivity, temporary injury, malice are all the factors that have to weigh the mind of the Court while assessing strict liability in nuisance. Defendants in his evidence has admitted that plaintiff and his ancestors have been getting light and air through the windows fixed to two rooms which are used as kitchen and pooja on western portion of the plaintiffs house from the open space where defendant is intending to put up sceptic latrines. This establishes that plaintiff has an interest in the land in question and is the sufferer.
22. As far as damages are concerned, it is settled law that if nuisance is a public one then the plaintiff must prove damage whereas if it is a private nusance although it is said that it should be proved, the law will often presume it. However, probable and substantial damage will ensue must be shown by the plaintiff. The Character of the acts themselves which produce the damage and the circumstances under which these acts are done must regulate the degree of certainty and particularity with which the damage done ought to be proved. As much certainty and particularity must be insisted on in proof of damage as is reasonable having regard to the Circumstance and to the nature of acts themselves by which damage is done. To insist upon less would be to release old and intelligible principles. To insist upon more would be vainest pedantry. In the instant case, the injury is one actionable per se and as such damage could be presumed. Much elaboration on this aspect of damages is not necessary for disposal of this case. Number of decisions were cited. Since all points canvassed by both parties have been dealt, it is not necessary to refer to the ratio of cases cited. Hence answer to the substantial questions of law framed are:
(i) In view of the amendment of the plaint wherein the plaintiff has sought declaratory relief, the question does not require further consideration.
(ii) Plaintiff need not establish title to the suit property since the act complained will inevitably result in nuisance. The Courts will not in general interfere until actual nuisance has been committed, but it may by virtue of its jurisdiction to restrain acts which when completed, will result in a ground of action interfere before any actual nuisance has been committed where it is satisfied that the act complained of will inevitably result in nuisance.
(iii) As regards the servient owners who are alleged to be left out; it is not suggested that Municipality was a party to the act of obstruction complained of or was in any way resisting the plaintiffs claim for enjoyment of light and air through windows and committed acts of commission, amounting to nuisance. Absence of municipality is in no way fatal to the plaintiffs suit.
23. For the foregoing reasons circumstances do not warrant any interference with the judgment and decree passed by both Courts. Judgments and decrees passed in RA 6/81 and O.S. 137/74 are confirmed.
24. This second appeal is dismissed accordingly.
25. Appeal dismissed.