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CASE NO.: Appeal (civil) 4494  of  1998

PETITIONER: SARASWATHI AND ANR.

       Vs.

RESPONDENT: S.  GANAPATHY AND ANR.

DATE OF JUDGMENT:       04/04/2001

BENCH: V.N.  Khare & S.N.  Variava

JUDGMENT:

S.  N.  VARIAVA, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  Appeal  is  against a Judgment dated  30th  April, 1998.  Briefly stated the facts are as follows:

   The  2nd Respondent was the owner of properties  bearing Survey  No.  7/232 (New) as well as Survey No.  7/229 (New). On  27th  February, 1973 the 2nd Respondent sold Survey  No. 7/232  (New) to the Appellants.  The Sale Deed mentioned the area to be 3341 sq.  ft.  and also gave certain descriptions of the said property.

   On  30th April, 1973 the 2nd Respondent sold Survey  No. 7/229 (New) to the 1st Respondent.  This Sale Deed mentioned that  the said property was of an area of 512 Sq.  ft.   and also gave measurements of the property.

   The  sale deeds of both the parties mentioned that  they had  right of ingress and aggress over an open passage which@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ was  to the West of the property sold to the 1st Respondent.@@ JJJJJJJJJJJJJJJJJJJ On  30th October, 1974 the 1st Respondent executed a Release Deed  relinquishing all his rights except a right of passage in  the open space.  The 1st Respondent after purchasing the property  put  up  some   additional  constructions  on  the property.  The Appellants sent a notice dated 22nd November, 1974  calling  upon  the  1st   Respondent  to  remove   the construction  put up by him.  On receipt of this notice  the 1st Respondent unilaterally cancelled the Release Deed dated 30th October, 1974.

   The  1st  Respondent then filed Suit No.  183/75  for  a permanent  injunction against the Appellants for  preventing him  from  using the open space.  An interim injunction  was granted  in  that suit.  On 29th March, 1975 the  Appellants filed  Suit  No.  512 of 1975 for declaration that  the  1st Respondent  had  encroached upon the land belonging  to  the Appellants  and  praying  for possession of the  same.   The Appellants  also claimed easementary rights of light and air

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and  an easementary right to have water from the roof of his house  flow into 1st Respondent’s property.  The  Appellants thus  prayed for a permanent injunction restraining the  1st Respondent  from closing the drainage outlet and obstructing the  passage  of  light  and air  of  the  Appellants.   The Appellants also claimed compensation from 2nd Respondent for shortfall  in  delivery of land, if it was found that  there was  a  shortfall.  This claim has admittedly been given  up and had not been pressed.

   Both  the  suits were tried jointly.  A common  Judgment dated  30th April, 1979 was delivered.  In the Suit filed by the 1st Respondent it was held that the 1st Respondent could only  claim  such rights as were reserved under the  Release Deed  dated  30th October, 1974.  In the Suit filed  by  the Appellants  it was held that the Appellants were entitled to recover 258 sq.  ft.  encroached by the 1st Respondent.  The Appellants  were  also  granted   the  permanent  injunction restraining  the  1st Respondent from blocking the  drainage and against stoppage of light and air.

   The  1st  Respondent preferred two Appeals bearing  Nos. 190  of 79 and 191 of 79 against the common Judgment.  By  a Judgment  dated  20th  December,  1980  the  District  Judge remanded the matter back to the Trial Court to determine the question of encroachment by appointing a Commissioner and to consider  whether there was any easementary right.  The  1st Respondent filed an Appeal against the order of remand.  The Appeal  was dismissed by the Madras High Court on 6th April, 1983.

   Pursuant to the directions given in the Order dated 20th December,  1980 the Trial Court appointed a Commissioner  to find  out encroachments.  The Commissioner visited the  suit property  several times and conducted an elaborate  enquiry. The  Commissioner submitted a Report to which reference will be  made  subsequently.  The trial Court again  decreed  the Suit  on  30th  July,  1993  and  held  that  there  was  an encroachment  to the extent of 338 Sq.  ft.  The Trial Court held  that  there  was  blockage of rain  water  outlet  and obstruction  of light.  The Trial Court directed delivery of possession  of  338  Sq.   ft.    and  directed  removal  of obstruction of drainage of water and of light.

   The  1st  Respondent  filed an  Appeal.   The  Appellate Court, inter alia, held as follows:

   "Despite the complex questions of law and facts involved in  the  suit in the judgment of the Trial Court,  there  is over  simplification  of the whole issues and the points  in dispute.  The Trial Court seems to have based its conclusion virtually  on  the  basis of the Commissioner’s  report  and directed the removal of the illegal encroachment."

   The Appellate Court then proceeds to make a large number of  assumptions and on the basis of those assumptions  holds as follows:

   "26.   Even  though there is no strong reasons of  logic stated by the Trial Court, the final conclusion of the Trial Court  is  unassailable.   For the reasons  stated  in  this judgment,  the  conclusion  of  the Trial  Court  is  to  be accepted.  There is no reason warranting interference in the judgment of the I Additional District Munsif, Coimbatore.

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   27.   Therefore  the  judgment  and decree  of  the  Ist Additional  District  Munsif,  Coimbatore  is  O.   S.   No. 512/75  is confirmed and this appeal is dismissed with costs of  R1  and R2/plaintiffs.  There is no order regarding  the cost of D-1."

   At  this stage it must be noted that the Appellate Court proceeded,  amongst others, on the assumption that the  area mentioned  in  Appellants’  Sale  Deed was to  be  taken  as correct  and  if the Appellants were found to be  in  actual occupation  of a lessor area then the same was to be treated as having been encroached upon by 1st Respondent.

   The  1st Respondent then filed a Second Appeal.  In  the Second  Appeal the following substantial question of law was raised:   "Whether  the view taken by the Courts below  that because there is deficiency in the extent of the property in the  enjoyment  of  the plaintiffs, it should  be  taken  as having been encroached by the second defendant is correct in law?"

   The  High  Court  then   considered  the  Commissioner’s Report,  the Sale Deeds of both the parties, the evidence on record  and concluded that the Judgments of the Trial  Court and  the  1st Appellant Court could not be maintained.   The High  Court  held  that both the Courts  below  had  ignored documents/evidence  and  had  proceeded  on  entirely  wrong basis.   The High Court held that the encroachment, if  any, could  only be said to be to the extent of 21 Sq.  ft.   and such encroachment paled into insignificance.  The High Court recorded  the statement of the counsel of the 1st Respondent that the 1st Respondent was willing to ensure that there was proper  drainage  of  rain water from the  premises  of  the Appellants.   The  High Court noted that the light  and  air were  being  blocked but that it was only to a small  lumber room.  The High Court thus allowed the Second Appeal.  Hence this  Appeal.   We have heard the parties at  great  length. Mr.   Sivasubramaniam  submitted  that the  High  Court  has overruled the concurrent findings of fact by both the Courts below    and   has    re-    appreciated   evidence.     Mr. Sivasubramaniam  submitted  that the High Court allowed  the Second  Appeal without there being any question of law, much less  a substantial question of law.  On the other hand, Mr. Muralidhar  submitted that the question of law framed by the High  Court is a substantial question of law.  He  submitted that  in  deciding this substantial question of law  it  was necessary  for  the High Court to look at the documents  and evidence on record.

   We  have  seen the Judgments of the Trial Court and  the 1st  Appellate Court.  The 1st Appellate Court has correctly noted  that the trial Court had proceeded in a most  summary fashion and had over- simplified complex of questions of law and  fact.   We also find that the 1st Appellate  Court  had adopted an entire erroneous approach in law.  The Appellants had,  admittedly,  only purchased Survey No.   7/232  (New). They  were thus entitled only to lands which formed part  of this  Survey No.  The 1st Appellate Court noticed that  even though  the Sale Deed of the Appellants showed the extent of the  land  to  be 3341 Sq.  ft.  in actual fact  Survey  No. 7/232  was  only  of  an  area of 2481  Sq.   ft.   The  1st Appellate  Court  also notices that the description  of  the property  given  in the Sale Deed was not  accurate.   After noticing  these  vital  aspects   the  1st  Appellate  Court

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proceeds  to  make  a number of assumptions  which  have  no basis.  The 1st Appellate Court then concludes that if there is any shortfall in the land occupied by the Appellants then that  shortfall must necessarily be encroachments by the 1st Respondent.   In counting shortfall the 1st Appellate  Court takes  it  for granted that the Appellants were entitled  to 3341 sq.  ft.  as mentioned in the Sale Deed.

   In  our view, the High Court was right in coming to  the conclusion  that  such an approach is unsustainable in  law. The  question before the Courts was whether or not there had been  an  encroachment  by  the  1st  Respondent  into  land purchased by the Appellants.  The other question was whether there was any easementary right in the Appellants.  It is on these  questions  that there had been a remand to the  Trial Court.   The  Trial  Court,  pursuant  to  the  remand,  had appointed  a  Commissioner.   The Commissioner has  given  a detailed  Report.   It is now necessary to see this  Report. The  Commissioner, in his Report, notes that the description of  the property given in the Sale Deed of the Appellants is not  accurate.   The Commissioner, on  actual  measurements, gives a positive finding to the following effect:

   "9.  As the memo of instructions given by the respondent warranted  me to note the actual extent of enjoyment by  the petitioners  and respondents with respect of T.S.   Numbers, this  respondent is in possession and enjoyment of an extent of  533 Sq.  feet as follows i.e.  98 Sq.  feet in T.S.  No. 7/228-PART;   423 Sq.  feet in 7/219 PART;  and 12 Sq.  feet in  7/232  PART.   The  Petitioners are  in  possession  and enjoyment  of  2506  Sq.  feet in T.S.  7/232  PART  and  an extent  of 235 Sq.  feet in T.S.  7/231 and an extent of 350 Sq.   feet in T.S.  No.  229 PART used as lane thus  totally measuring an extent of 3091 Square feet.

   10.   The  4th para of the memo of instructions  by  the respondent specifically directed me to note down whether the respondent  is within the limits as per Ex.A-1 I found  that the    area   of   enjoyment     and   possession   of   the respondents/defendants  exceeds  only to the tune of 21  Sq. ft.   and  that is too on the northern side.   The  specific measurements  and  area  of enjoyment by the  Respondent  is shown  in  a separate diagram in the Diagrams 1 to 4 may  be read as part and parcel of this report."

   Thus, it is to be seen that it is the Appellants who are encroaching  upon  350 Sq.  ft.  in Survey No.  7/229.   The 1st  Respondent has excess area to the extent of 12 Sq.  ft. in  Survey No.  7/232.  The Commissioner has also found that the  1st  Respondent has land to the extent of 21  sq.   ft. over  and  above what he had purchased under his Sale  Deed. Both  the  trial Court and the 1st Appellate Court had  this factual  position before them.  One fails to understand  the logic  by  which  both  these   Court  concluded  that   the encroachment  was to the extent of 338 Sq.  ft.  Both  these Courts ignored the fact that the encroachment, to the extent of   338  Sq.   ft.,  could   only  be  there  provided  the measurements  and description given in the Sale Deed of  the Appellants   were   correct.   As   set  out  above,   those measurements  and  the description are  entirely  incorrect. The  factual position was that the Appellants, who had  only purchased  Survey  No.  7/232 was in possession not only  of entire  Survey  No.   7/232 (less 12 Sq.  ft.)  but  was  in possession  (without any right) of 350 Sq.  ft in Survey No. 7/229 which was purchased by 1st Respondent.  The Appellants

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having  only purchased Survey No.  7/232 is not entitled  to more  than  2481  Sq.   ft.    The  Appellants  are  now  in possession  of  more than what was purchased by  them.   The Appellants  were  seeking  to claim possession  of  property which  they had never purchased under their Sale Deed.   The High Court has rightly not allowed this.

   Next comes the question of easementary right of drainage of water and easementary right of the light and air.  On the Appellants’ property abetting the 1st Respondent’s property, there  is  a small triangular room.  Water from the roof  of that  room  used to flow into the open ground in Survey  No. 7/229.   Earlier,  the 2nd Respondent was the owner of  both Survey  No.  7/232 as well as Survey No.  7/229.  Therefore, water  from  the  roof  of  a room  in  his  possession  and ownership used to flow into open space belonging to him.  In such a case there was no question of any easementary rights. The  1st  Respondent  then  sold Survey No.   7/232  to  the Appellants  on 27th February, 1973 and Survey No.  7/229  to the  1st  Respondent on 30th April, 1973.  The sale to  both the  parties is within a period of 2 months.  No easementary rights  could  have been acquired by the  Appellants  within this  period  of  two  months.  As the  1st  Respondent  had purchased  the property he was entitled to construct on  his own property.  Mr.  Sivasubramaniam seriously submitted that the 1st Respondent was bound to allow water from the roof of the  triangular  room  to  flow on to the land  of  the  1st Respondent  as  it  had  always   done  in  the  past.   Mr. Sivasubramaniam  seriously contended that the 1st Respondent could  not construct on his own land in a manner which would prevent  the flow of such water into 1st Respondent’s  land. In  our view, this argument merely needs to be stated to  be rejected.  No person can have a right to have water from his property  flow onto to land of his neighbour.  No such right was  granted under the Sale Deed.  No such easementary right can be claimed in law.  All that the Appellants can claim is to  see that water from the roof of his house is allowed  to flow,  on to his own land.  The 1st Respondent’s counsel has made  a statement which has been recorded by the High Court. That statement reads as follows:

   "On  23-11-1994,  my client has filed I.A.  No.   206/94 against  you and obtained a temporary injunction.  In which, my  client was directed to make an arrangement to drain  the rain  water  collected  on the terrace of  your  small  room situated  on  the Eastern side of my client’s  kitchen.   My client  aggreable  to bear the cost for making hole in  your terrace  and put up a concealed drainage pipeline from inner room  to  the  outlet of your house  itself.   Through  this letter,  I  seek  you  willingness  for  my  client’s  above proposal."

   On the basis of this statement an Order to the following effect has already been passed:

   "With  reference  to the clearing of rain water  on  the roof  of the plaintiffs’ property, the appellant through his counsel  undertook to reimburse the cost to be incurred  for making  an  arrangement  as described in  the  letter  dated 30-11-1994  of  the  appellant  through  his  counsel.   The respondents/plaintiffs  shall be at liberty to avail of  the same  and  call  upon  the appellant  to  pay  the  expenses incurred  by  disclosing the details and within  four  weeks from  the  date  of  receipt  of  such  a  demand  from  the

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plaintiffs,  the  appellant  shall pay the  amounts  to  the plaintiffs by a demand draft."

   In  our  view,  this is sufficient  protection  for  the Appellants.   So  far  as the question of light and  air  is concerned, it cannot be denied that the concerned triangular room is only a small lumber room.  If that be so, then there is no question of blockage of light and air.

   In our view there is no infirmity in the Judgment of the High Court.  It calls for no interference.  Accordingly, the Appeal  stands  dismissed.   There will be no  Order  as  to costs.