Judgment:
Tarun Kumar Gupta, J.
This second appeal is directed against judgment and decree dated 20th November, 2000 passed by learned Civil Judge (Senior Division), First Court at Midnapur in Title Appeal No.64 of 2000 reversing the judgment and decree dated 25th of January, 2000 passed by learned Civil Judge(Junior Division), First Court at Midnapur in Title Suit No.136 of 1996.
The appellant/plaintiff filed said suit alleging that while he was exercising his right, title, interest and possession in ‘A’ and ‘B’ Schedule properties, he sold away ‘B’ schedule property to the defendant by a registered kobala dated 21st of April, 1995. It is further case that the defendant started construction by installing concrete pillars adjoining to the common boundary wall in violation of Municipal law and rules and without keeping required three feet space. Though at the initial stage at the intervention of local people, the defendant demolished the pillars upto the ground level and assured that he will not make any construction in violation of Municipal rules but again started construction by raising concrete pillars leaving less than one foot space from the common boundary walls of the plaintiffs and hence was the suit for a permanent injunction restraining the defendant from making any illegal construction as well as for a mandatory injunction for demolition of said unauthorizedly constructed pillars.
The respondent defendant contested said suit by filing written statement. She denied material allegations of the plaint and contended inter alia that at the time of purchase of said ‘B’ schedule property from plaintiff there was one tin shed house adjoining the common wall along with latrine well etc. and that subsequently defendant obtained sanctioned plan from the municipality on 17th May, 1996 for making pucca construction in ‘B’ schedule property and as per said plan she was making construction thereupon. It was further case that at the time of said purchase there was an agreement between the parties that defendant would be permitted to make pucca construction on her purchased land using said common wall as wall of her house and / or leaving space measuring one feet six inches (1’6”) from the western side common wall. It is further case that keeping said assured distance from the western side common wall when the construction was almost complete as per sanctioned plan plaintiff demanded Rs.20,000/- from the defendant for making said construction and while defendant refused to pay said amount, this false case was filed.
Learned Trial Court decreed the suit in part by allowing plaintiff’s prayer for permanent injunction against the defendant restraining her from making any construction in ‘B’ Schedule property without leaving three feet space from the western side common wall in violation of the municipal rules, but declined to give any order of mandatory injunction.
The defendant filed an appeal against said judgment and decree of learned Trial Court. The plaintiff also filed one cross-appeal challenging the judgment of learned Trial Court so far as it related to not granting of any mandatory injunction for demolition of illegally constructed part of the building of defendant. Learned Lower Appellate Court dismissed the cross-appeal filed by the plaintiff and allowed the appeal filed by the defendant by way of setting aside the judgment and decree of learned Trial Court. Now, the plaintiff has filed this second appeal.
At the time of admission of this second appeal the following substantial question of law was formulated by the learned Division Bench.
“Whether the Appellate Court was justified in reversing the findings of the Trial Court and in not granting an order for demolition of the construction in question inasmuch as since the Trial Court granted a decree declaring that the defendant / respondent has no right to raise any sort of construction or pillar within 3 feet space from the western side common wall of the “A” schedule suit property, the Court of Appeal below ought to have directed the defendant / respondent to demolish the construction illegally raised by her without keeping 3 feet space from the western side common wall of ‘A’ schedule suit property or not.”
Mr. R. N. Mahato, learned counsel for the appellant, submits that evidence on record clearly showed that defendant started construction only leaving one foot space from the common wall of the parties which was the eastern boundary wall of the land of the defendant. He further submits that though in the building plan sanctioned to the defendant there is stipulation of keeping three feet clear open space in all sides from the corresponding boundary wall but defendant in violation of said municipal plan tried to make said illegal construction. He further submits that even in the plan defendant made some interpolations by way of striking out of the words “three feet clear space from boundary lines” and by inserting the words “one foot six inches”. In this connection Mr. Mahato also draws attention of the Court to the report of learned Advocate Commissioner to show that there were erection of pillars only keeping barely one foot space in between said common wall being eastern boundary wall of the defendant and the construction. Mr. Mahato also refers to the cross-examination of D.W.2, an employee of Midnapur Municipality, wherein he stated that there is no such municipal law by which construction can be raised at a distance of one and half feet from the common wall. In this connection Mr. Mahato refers to the decision of this Court reported in AIR 1965 Calcutta page 148 (Krishna Kali Mallik vs. Babulal Shaw and others) to impress upon this Court that if a person raises construction in violation of municipal rules then a neighbour who is affected by said illegal construction has every right to file a suit praying for injunction as well as mandatory injunction. Mr. Mahato also refers to a case law reported in 2010 (3) CHN (Cal) page 39 (Raju Chanda and Another vs. State of West Bengal and Ors.) to submit that illegal construction in violation of municipal rules and sanctioned plan cannot be regularized even by payment of fine. According to him, as defendant admittedly started construction only keeping hardly one foot open space from the eastern boundary (common wall) and learned Courts below also did not dispute said fact then the plaintiff was entitled to get not only temporary injunction as granted by learned Trial Court but also a mandatory injunction for demolition of unauthorized construction.
Mr. Mohan Kumar Putatunda, learned counsel for the respondent defendant, on the other hand, submits that plaintiff was not entitled to get any relief whatsoever in said suit on the following grounds:-
(a) Common wall and boundary wall are not synonymous terms.
(b) As per evidence of D.W.2, an independent witness being an employee of Midnapur Municipality, a column of the building was to be raised at a distance of one and half feet from the common wall but by leaving a space of three feet from the other boundary walls.
(c) The plaintiff had no allegation of diminishing of light and / air for said alleged illegal construction and hence plaintiff had no actionable claim for filing said suit.
(d) The plaintiff filed said suit belatedly when the construction was almost complete and hence plaintiff was not entitled to get any order of injunction for his acquisitions to said construction.
(e) The corrections in front side of the building plain were made by the Municipal Authority being authenticated by stamp and signature and that it was not a case of interpolation by defendant or her men and agent.
From the submissions of learned counsels of the parties as well as from the materials on record I find the following admitted facts:-
(1) Plaintiff was the owner of both “A’ and ‘B’ schedule property.
(2) Plaintiff sold out ‘B’ schedule property to the defendant through a registered kobala dated 21st of April, 1995.
(3) At the time of said sale there were structures with tin shed on the lands of both vendor or vendee, both being adjacent to the common wall.
(4) The defendant/purchaser was permitted to construct / reconstruct building in his purchased land provided said construction etc., did not damage the tin shed structure of the plaintiff seller lying adjacent to the common wall.
(5) The defendant submitted an application to the Midnapur Municipality for addition of ground floor and construction of first floor in the first part of 1996 which was sanctioned in May, 1996.
(6) There are striking out of words “three feet clear space from boundary line” in the front side.
(7) At the prayer of plaintiff there was a local inspection by an Advocate Commissioner to show that the open spaces left by defendant at the time of said construction of pillars were from 13” to 3” from the common wall lying to the east of defendant’s land and to the west of plaintiff’Section land.
(8) After filing of the suit plaintiff got an order of injunction restraining defendant from making any further construction but before filing said suit defendant already made some construction upto the first floor in the other portion of his land.
There is no denial that as an illegal construction by the defendant neighbour may materially affect the right or enjoyment of the plaintiff’Section property, the defendant owes a duty and an obligation under the statute namely West Bengal Municipal Act not only to the municipality but also to the neighbours namely plaintiffs for whose benefit municipality rules regarding keeping open space in all sides of the building was provided.
In the case of Krishna Kali Mallik (Supra) it was held that the defendant’Section illegal construction can be prevented by injunction in a suit filed by a neighbour provided the neighbour establishes that there is first a breach of statutory duty and or statutory obligation and that there is an injury or damage of a kind against which the statute is designed to give protection and that the breach or statutory obligation caused or materially contributed to his injury or damage.
Let me now examine the facts of this case as stated above in the backdrop of this principle of law as laid down by this Court.
In the case in hand it came out from the evidence of D.W.2, an employee of the Midnapur Municipality, that if there is no common wall then one has to raise construction by leaving a space of three feet from the boundary and that a space of one and half feet (measurement from centre to centre) may be kept from the common wall and that there was a by-law to that effect in Midnapur Municipality. However, in one place he stated that there is no such general municipal law by which construction can be raised at a distance of one and half feet from the common wall. He could not produce any bye-law during his evidence in support of his aforesaid claim. Admittedly the general municipal rule is keeping of minimum three feet space from the boundary wall for making any construction. When defendant was claiming exception to that general rule it was his duty to prove the same by producing the special bye-law as alleged. An adverse inference should have been drawn for nonproduction of said alleged bye-law approving departure from the general law.
It appears from the back side notings of the Municipal Plan (Ext.-A) that there was a direction of keeping 3 feet clear space all around from boundary walls. The same direction was repeated in the front side also under seal and signature of the issuing authority. There are various interpolations in the front side of the approved plan without any authentication by the appropriate authority.
Let us accept from argument’s sake that on the strength of an alleged bye-law of the Midnapur Municipality a person can make new construction of building by keeping 1 ft. open space from the common wall of adjoining land, and that a plan to that effect was sanctioned.
The report of learned Advocate Commissioner (P.W.2) was proved and marked as Exhibit-3. Learned Advocate Commissioner (P.W.2) deposed that in presence of both plaintiff and defendant he held his commission work but defendant refused to put her signature on the paper as her husband was not present. There was no cross-examination denying said assertions. This amounts to admission of those assertions of the witness (P.W.2).
It appears from the report (Ext.3) relating to point Nos. 1 and 2 that there were four pillars (3 new concrete pillars and one new pillar made with brick and cement) in the western side of the common wall, and that the distance between those pillars and common wall decreased from south to north.
It further appears that while the distance between the common boundary wall and southernmost pillar just lying to its west was 13 inches, the same between northernmost pillar and common boundary wall was only 3 inches. Defendant did not file any written objection against said report of learned Commissioner. There was no effective cross-examination to show that learned advocate commissioner was partisan or that his report was not reliable. As such, learned Lower Appellate Court should not have discarded said report of learned Advocate Commissioner alleging it to be ex parte. It is thus crystal clear that even the alleged bye-law of Midnapur municipality permitting keeping 1 ft. space from common boundary wall was also flouted. As such constructions of those four pillars just adjacent to the west of the common boundary wall were illegal and the plaintiff as the close neighbour to said common boundary wall had every right to file a suit for declaration and mandatory injunction for demolition of those illegally constructed four pillars as well as for permanent injunction restraining defendant for making any construction without keeping 3 feet clear open space from said common boundary wall.
It came out that initially plaintiff moved the Court of executive magistrate under Section 144 Code of Criminal Procedure to prevent said illegal construction. As said forum cannot give a relief in the permanent nature the plaintiff had to file the suit for declaration and injunction. There is nothing to show that the plaintiff was guilty of acquisitions.
On overall assessment of the materials on record it is clear that learned Lower Appellate Court allowed the appeal of the defendant and rejected the cross-objection of the plaintiff without proper appreciation of the evidence on record and based on extraneous matters.
As such the appeal is allowed on contest.
However, I pass no order as to costs.
The appellant/plaintiff do get a decree of permanent injunction restraining the respondent /defendant from making any construction within three feet from the western side common wall of the ‘A’ schedule property and also a mandatory injunction directing the respondent /defendant to demolish the incomplete pillars raised within 1 feet space from the western boundary wall of ‘A’ schedule property within eight weeks from this date failing which the appellant / plaintiff will be at liberty to demolish the same through Court by executing the decree at the cost of the respondent / defendant.
Let a decree be drawn up accordingly.
Send down Lower Court record along with a copy of this judgment to the Lower Court at the earliest.
Urgent photostat certified copy of this judgment be supplied to learned counsel/ counsels of the party / parties, if applied for.