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Ramautar Gope And Others v. Sheonandan Mistri And Others

Patna High Court

Jan 30, 1961

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

The plaintiffs instituted a suit for declaration of title and recovery of possession in respect of a lane bearing municipal Khasra No. 334 and for a mandatory injunction directing the defendants to close doors and windows facing that lane. The defendants' principal pleas were (i) that no encroachment had been made by them on the lane, and (ii) that the suit was barred for want of notice under Section 508 of the Patna Municipal Corporation Act, 1951.

Geographically, the defendants' house lies to the east of the lane (measured in cadastral survey as plot No. 83 and in the municipal survey as plots Nos. 713 and 714) and the plaintiffs' house lies to the west of the lane (cadastral plot No. 76; municipal plot No. 333). Both lower Courts found that the land in dispute formed part of the plaintiffs' plot (cadastral No. 76 / municipal No. 333).

The trial Court dismissed the suit on the ground that it was barred by Section 508 of the Patna Municipal Corporation Act, while the lower appellate Court disagreed and decreed the suit. Only the principal defendants (appellants) appealed to this Court. Counsel for the appellants, Mr. R. S. Chatterji, advanced four points of challenge against the lower appellate Court's decision, which the Court considered in turn.

Legal Issues Presented

Whether the lower appellate Court erred in rejecting or discarding the appellants' exhibits Exts. C and C(1) which were relied upon to show boundaries in support of the appellants' case.
Whether the lower appellate Court was wrong in taking into consideration the report of the commissioner (appointed to measure the land) when that commissioner was not examined as a witness at the trial.
Whether the suit is barred (non‑maintainable) for want of notice under Section 508 of the Patna Municipal Corporation Act, 1951.
Whether the lower appellate Court was correct in directing the defendants to close the door and windows in the western wall of their house within a month of the decree (failing which closure to be effected at their cost by court process), or whether that direction should be modified or set aside.

Arguments of the Parties

Appellants' Arguments (as recorded in the opinion)

Exts. C and C(1) contain boundary descriptions that support the appellants' claim that the land in dispute is not exclusively the plaintiffs' and therefore these documents should be accepted as evidence of boundary.
The report of the commissioner (appointed to measure the land) should not have been considered because the commissioner was not examined as a witness at the trial (the commissioner had died before being examined), and thus his report is not admissible.
The suit is barred by Section 508 of the Patna Municipal Corporation Act, 1951 because the entry in the municipal survey records was an act of the Corporation (or its predecessor-in-interest) and therefore the plaintiffs should have given the statutory notice; absence of such notice renders the suit non‑maintainable.
The appellate Court erred in directing the defendants to close doors and windows facing the lane; appellants relied on Sarojini Devi v. Krista Lal Haidar and related authorities to contend that absolute owners of a wall cannot be restrained from enjoying their property rights and that a rival owner may build to obstruct new windows rather than the other way around.

Respondent / Other-side Position (as recorded in the opinion)

The lower appellate Court treated the suit as a declaration of title (and consequential injunction) rather than a suit founded on acts of the Corporation under the municipal Act, and therefore held Section 508 inapplicable as pleaded. The Patna Municipal Corporation was impleaded but did not appeal against the lower appellate decision.
On the specific relief concerning closure of doors and windows, Mr. S. N. Dutta (for the other side) conceded that the appellate Court's order should be modified to the extent that the plaintiffs should be permitted to erect walls or other structures on their own land which might result in blocking the defendants' doors/windows.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Soney Lal Jha v. Darabdeo Narain Singh, ILR 14 Pat 461 : AIR 1935 Pat 167 (FB)	Third‑party vendor documents (statements of a third party) are inadmissible against present parties unless vendor is dead or examined; used to assess admissibility of Exts. C and C(1).	The Court relied on this authority to reject Exts. C and C(1) as admissible evidence against the plaintiffs because they were vendor documents and there was no evidence that the vendors were dead or had been examined.
Firm Nathubhai Dhuiaja v. Bombay Corporation, AIR 1959 Bom 332	Interpreting notice provisions similar to municipal notice provisions (Section 527 Bombay Municipal Corporation Act) and what constitutes valid notice to the Corporation.	The Court held this authority inapplicable to the present facts because that decision was concerned with whether notice to the Municipal Commissioner was valid as notice to the Corporation; there was no discussion in that case about suits confined to declaration of title against a Corporation.
Jageshar Thakur… v. Mahabharath Thakur…., AIR 1950 Pat 32	Discussion related to the mandatory nature of notices (comparison with Section 80 CPC), cited in argument about the scope of notice requirements.	The Court found this authority not bearing on the present facts; it concerned Section 80 CPC issues and did not resolve whether Section 508 of the Patna Act applies to a suit of the kind before the Court.
State of Bihar v. Raghunandan Singh, AIR 1960 Pat 530	Cases where the factual situation better aligns with a declaration of title rather than an action based on acts under municipal statute; used for comparison on applicability of municipal notice provisions.	The Court regarded this decision as closer to the present facts and used it to support the view that Section 508 was not applicable here.
Sarojini Devi v. Krista Lal Haidar, 36 Cal LJ 406 : AIR 1923 Cal 256	Principle concerning rights to obstruct new windows/openings and that a landowner may build upon his own land even if it obstructs light or views, subject to protection of ancient lights; the idea that a neighbour gains no new right merely by opening windows.	The Court applied this principle to set aside the lower appellate Court's specific direction that the defendants must close their doors and windows, and instead allowed plaintiffs to erect walls on their land even if that results in closure of the defendants' doors/windows.
Trustee Mondal v. Kenaram Mandal, 34 Cal LJ 518 : AIR 1921 Cal 231	Explaining the general principle applied to cases of obstructing new windows and the rights of landowners to build on their land.	Quoted within the reasoning drawn from Sarojini Devi; used to support the conclusion that plaintiffs may build on their own land even if it obstructs the defendants' openings.
Tapling v. Jones, (1865) 11 HLC 290	Authority cited within the Sarojini Devi discussion about the misleading expression "right to obstruct" and the limits of rights when neighbours open windows.	Used in the quoted principle to explain that opening windows creates no new right and the remedy is building on one's own land; the Court invoked that reasoning in modifying the lower appellate Court's order.
Re Penny and S.E. Ry. Co., (1857) 7 EL and BL 660 : 110 RR 773; Turner v. Spooner, (1861) 1 Dr and Sm. 467 : 127 RR 192; Chandler v. Thompson, (1811) 3 Campbell 80 : 13 RR 756	Cases referenced in the discussion of ancient lights and the limitations on building to obstruct light; cited in the Sarojini Devi passage.	These older authorities were cited in the Sarojini Devi discussion quoted by this Court to explain limits (e.g., ancient lights) on the right to obstruct; the Court relied on the overall principle rather than applying these historic cases separately to the facts.

Court's Reasoning and Analysis

The Court addressed the four points raised by the appellants in the order argued:

1. Admissibility of Exts. C and C(1)

The appellants relied on Exts. C and C(1) to show boundary descriptions supportive of their claim. The Court accepted the lower appellate Court's detailed treatment and applied the rule from Soney Lal Jha v. Darabdeo Narain Singh that vendor documents are statements of third parties and cannot be used against the present plaintiffs unless the vendors are dead or have been examined. There was no evidence that the vendors were dead or examined. On that basis the Court found the lower appellate Court correctly rejected those documents and dismissed the first point.

2. Report of the Commissioner

The commissioner was appointed to measure the land and submitted a report. The Court noted that such a report is admissible and "forms part of the case" as provided in Rule 10(2) of Order XXVI CPC. Although the appellants claimed the commissioner was not examined because he had died, the Court held that the absence of his oral examination did not render his report inadmissible. Additionally, no objection to the report had been taken at trial or before the lower appellate Court; in fact, counsel for both parties had prayed that the report be considered with other evidence. Given the lateness of the objection and the legal admissibility of such reports, the Court rejected the second point.

3. Applicability of Section 508, Patna Municipal Corporation Act

The Court analyzed Section 508(1), which bars suits against the Corporation, officers or persons acting under the Corporation in respect of acts done in pursuance or intended execution of the municipal Act (or alleged neglect/default in its execution) unless a one‑month written notice is delivered. The trial Court had held that the municipal survey entry amounted to an act of the Corporation and therefore the suit was barred for want of notice. The lower appellate Court disagreed, treating the relief sought as a declaration of title rather than a claim based on acts done under the Act.

The Court reviewed authorities relied upon by the appellants (Firm Nathubhai Dhuiaja and AIR 1950 Pat 32) and concluded they did not apply to the facts of this case. The Court agreed with the lower appellate Court that the plaint's allegations did not concern acts done in pursuance of the municipal Act or neglect/default in its execution; the principal part of the suit concerned declaration of title and an injunction restraining the defendants from interfering with plaintiffs' possession (and prospective threatened acts), not redress for acts done by the Corporation under the statute. The Court also observed that the Corporation, though impleaded, had not appealed against the lower appellate decision and therefore could not now seek to benefit from a position it chose not to challenge; the Court declined to exercise its inherent powers (Order 41, Rules 4 and 33 CPC) to grant relief to the Corporation when a remedy lay with the Corporation and it had not appealed. On these bases the Court decided the third point against the appellants.

4. Direction to Close Doors and Windows

The appellants challenged the lower appellate Court's direction that they must close the doors and windows in their western wall within a month or have them closed at their cost. The appellants relied upon Sarojini Devi v. Krista Lal Haidar and related authorities which explain that a landowner may build on his own land even if it causes obstruction to a neighbour's windows; opening windows creates no new right in the neighbour, and the remedy for annoyance is building on one's own land (subject to the protection of ancient lights).

The Court found this contention persuasive to the extent conceded by the other side. It set aside the specific direction compelling the defendants to close their doors and windows and modified relief to permit the plaintiffs to erect walls or other structures on their own land on the eastern side; such erection may result in the doors and windows of the defendants' western wall becoming permanently blocked. Thus, rather than compelling the defendants to dismantle or close their openings, the Court allowed the plaintiffs to exercise their property rights on their own land which may have that effect.

Holding and Implications

HOLDING: The appeal is dismissed and the decree of the lower appellate Court is confirmed subject to the stated modification. Specifically, the lower appellate Court's decree in favour of the plaintiffs stands, but the direction that the defendants must close the doors and windows in their western wall (or face closure at their cost by court process) is set aside. Instead, the plaintiffs are permitted to erect walls or other structures on their own land which may result in the permanent blocking of the defendants' doors and windows.

Implications:

The plaintiffs obtain a declaration of title and recovery of possession as decreed by the lower appellate Court (subject to the modification regarding closure of openings).
The defendants cannot rely on Section 508 of the Patna Municipal Corporation Act to defeat the suit in these circumstances; the Court held Section 508 inapplicable on the facts and noted that the Corporation did not appeal the adverse decision.
The specific injunctive command compelling the defendants to close their own doors and windows has been removed; instead, the plaintiffs are allowed to exercise their right to build on their land even if that obstructs the defendants' openings — consistent with the principles cited in Sarojini Devi and related authorities.
No new legal precedent was announced beyond the application of existing principles to these facts; the decision resolves the parties' rights and obligations in this case without purporting to expand statutory notice law or alter established principles on rights to build on one's own land.

Final procedural disposition recorded: Appeal dismissed. There was no order as to costs.

Show all summary ...

1. The suit by the plaintiffs, who are main respondents in this Court, was for declaration of title and recovery of possession in respect of a lane bearing municipal Khasra No. 334 and for mandatory injunction directing the defendants to close their door and windows facing that lane. In defence, the main pleas raised were (i) that no encroachment had been made by the defendants over the lane, and (ii) that the suit, is framed, was had for want of notice under Section 508 of the Patna Municipal Corporation Act, 1951. It is not denied that on the east of the lane to dispute is the house of the defendants, which, during, the cadestral survey was measured as plot No. 83 and in the municipal survey in plot Nos. 713 and 714. And that on its west is the house of the plaintiffs, which, during the cadestral survey was measured as plot No. 76 and during the municipal survey as plot No. 333. Both the Courts, have concurrently found that the land in dispute forms part of the plaintiffs' plot on the west, namely, that of cadestral survey plot No. 76 and municipal survey plot No. 333. The trial Court, however, dismissed the suit, on the ground that the suit as constituted, was hit by the mischief of Section 508 of the Patna Municipal Corporation Act, 1951. The lower appellate Court, has taken a different view on that question. In the opinion of the lower appellate Court, this suit is not hit by the aforesaid Section 508 of the Patnai Municipal Corporation Act, even though Patna Municipal Corporation has been impleaded as a party defendant to the present action. Accordingly, the lower appellate Court has decreed the suit. Now as against that judgment and decree, only the principal defendants have come up in second appeal to this Court. That means, there is no appeal filed on behalf of the Patna Municipal Corporation. Mr. R.S Chatterji appearing-for the appellants in support of this appeal, raised four points (i) that the lower appellate court? erred in law in discarding the two exhibits of the appellants, namely, Exts. C and C(1), (ii) that the lower appellate court in law was wrong in taking into consideration the report of the pleader commissioner, in view of the fact that the commissioner was not examined as a witness at the trial, (iii) that the suit, as framed in the present case, is hit by Section 508 of the aforesaid Patna Municipal Corporation Act, and as such to should have been dismissed, and (iv) in any view of the matter, the lower appellate Court was not right in passing the order that “the defendants 1st party shall close the door and the windows in the western wall of their house within a month of the date of the decree, failing which they shall be closed at their cost through the processes of the Court.” I take up these points one by one in the order in which they have been stated above.

2. As to the first point, it will suffice to say that Exts. C and C(1) have been relied upon, by the appellants to show that therein the boundaries given of the properties covered thereunder give support of their case. In other words, those documents have been relied upon by the appellant only to prove that the boundaries given therein show that the land in dispute is not the exclusive property of the plaintiffs. The lower appellate Court has elaborately discussed this point. In my opinion, he has rightly relied upon the-rule of law as laid down to Soney Lal Jha v. Darabdeo Narain Singh, ILR 14 Pat 461 : (AIR 1935 Pat 167) (FB), in rejecting the same. It cannot be denied that Exts. C and C(1) are documents of the vendors of the present appellants, and, as such, the statements of a third party. There is no evidence on the record that they are dead, nor they have been examined in this case-As such, the statements made about the boundaries in those documents cannot be held in law as admissible against the plaintiffs of the present case.

3. Then comes the criticism against the report of the Commissioner. It appears that at the trial, the Court had appointed a commissioner for measuring the land in dispute, and, in pursuance of that order, the commissioner had submitted a report. That report in law is obviously admissible, and, in fact, forms part of the case, as provided in Rule 10(2) of Order XXVI of the Code of Civil Procedure. It is, however, stated by Mr. Chatterji that though an application had been filed on behalf of the appellants to examine that commissioner as a witness in the case in support of the objections raised on their behalf, he was ultimately not examined as fey the time the case was taken up for trial, he was dead. In my opinion, the fact that the commissioner was hold examined at the trial cannot, in law, make his report inadmissible in evidence. Secondly, no such objection was raised against the report of the commissioner either at the trial or in the lower appellate Court. On the contrary, it appears, as stated by the lower appellate Court, that on the 10th July, 1958, the lawyers of both the parties prayed before the trial Court that the report of the commissioner should be considered at the time of the hearing of the such along with oilier evidence on the record. Therefore, in my opinion, it is too belated on the part of the appellants to submit now that simply because the commissioner could not be examined at the trial due to his death, his report should not have been admitted in evidence. Thus the second point also fails.

4. The third point relates to the non-maintainability of the suit for want of notice under Section 508 of the Patna Municipal Corporation Act, 1951. It is not denied, as already stated above, that the Patna Municipal Corporation has been impleaded in the present action as a party defendant, and, that on their behalf an objection had been taken at the trial that the suit was his by the mischief of the aforesaid Section 508. The main part of that section provides:

“508(1) No suit shall be instituted against the Corporation, the Standing Committee or any Corporation, officer or servant, or any person acting under the direction of the Corporation, the Standing Committee or any municipal officer or servant, in respect of any act done in pursuance of execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder until the expiration of one month next after notice in writing has been delivered or left at the Corporation office or at the residence of such officer, servant or person stating with reasonable particularity…….”

5. This section, therefore, clearly applies in a case where the allegation against the Corporation is “in respect of any act done in pursuance of execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder”. Applying this test, the trial Court came to the conclusion that the entry got made in the records of the municipal survey was an act dona by the Corporation, or, at least, by the predecessor-in-interest of the Corporation, and as such the present case was covered within the terms of that section. The lower appellate Court, as against that, has taken a contrary view. In the opinion of the lower appellate Court, all that has been sought against the Corporation is a declaration of title and no relief has been sought for in regard to any act done in pursuance of execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder. Mr. Chatterjee appearing on behalf of the appellants has strongly challenged this view taken by the lower appellate Court, and, in support of his contention has placed reliance on the law laid down in Firm Nathubhai Dhuiaja v. Bombay Corporation. AIR 1959 Bom 332 and Jageshar Thakur… v. Mahabharath Thakur…., AIR 1950 Pat 32.

6. In my opinion, none of these two authorities has got any bearing on the facts of the present case. The former dealt with a question where the notice given under a similar provision of laws as provided in Section 527 of the Bombay Municipal Corporation Act (3 of 1888) was a valid notice as contemplated under that section. The notice as given there was against the Municipal Corporation. In those circumstances, the learned Judges who heard that case, held that any notice given to the Municipal Commissioner could not be accepted as a valid notice against the Corporation. There is no discussion made therein as to whether it applies even to cases where the subject-matter of controversy is confined to declaration of title against the Corporation.

7. Similarly, the latter decision, namely AIR 1950 Pat 32, is mainly on the question as to how far a notice given under Section 80 of the CPC is mandatory. Nobody asserts that a notice contemplated under Section 508 of the aforesaid Patna Municipal Corporation Act is not mandatory. What is in controversy here is whether it is at all applicable to a case of the present type. In my opinion, on the facts of this case, it cannot be successfully asserted that the allegations as made in the plaint are in respect of any act done in pursuance of execution or intended execution of this Act, or in respect of any alleged neglect or default in the execution of this Act or any rule or bye-law made thereunder. On the contrary, at least so far as the main defendants are concerned, it is a suit for injunction restraining them from in any way interfering with the possession of the plaintiffs. In other words, if it relates to any acts at all, it is in regard to those which are threatened to be done in future, and, not those already committed 115 the past. Therefore, the case which is more closer to the facts of the present case is that as given to State of Bihar v. Raghunandan Singh, AIR 1960 Pat 530. Lastly, it cannot be ignored that though the lower appellate Court held against the Corporation on this point, the Corporation has non come up in appeal against the judgment and decree given by the Tower appellate Court, it is true that they have been impleaded here as S. respondent, but on that ground alone, they cannot, as a matter of right, claim all that, which they could have asserted, had they come as appellant in this Court. It was, however, argued that though the Corporation have not come as an appellant here, still this Court can give relief to them in exercise of its inherent powers as provided in Order 41, Rule 4 and Order 41, Rule 33, Code of Civil Procedure. I think that when in a case where there was a clear remedy available to the Corporation and when they have chosen not to prefer any appeal against decision, there is no justification for me to exercise any inherent powers in their favour, specially when there is no cause shown as to why the Corporation have not chosen to prefer an appeal against the judgment and decree under appeal. And so far as the main defendants are concerned, they cannot take any advantage of the provisions of law as laid down in Section 508 of the Patna Municipal Corporation Act, if the Corporation are satisfied with the view taken by the lower appellate Court-For these reasons, I think, this point has also to be decided against the appellants.

8. That leaves us with the last contention which is on the point whether, in a case like this, the lower appellate Court was right in issuing a direction against the appellants that they should close the door and the windows in the western wall of their house within a month of the date of the decree, failing which they shall be closed at their cost through the processes of the Court. Mr. Chatterji has placed reliance on the rule of law as laid down in Sarojini Devi v. Krista Lal Haidar, 36 Cal LJ 406 : (AIR 1923 Cal 256) and has contended that the appellants being the absolute owners of the western wall of their house cannot be restrained, from enjoying all the rights of the property therein, and, therefore, even if it be held that the ownership of the land in dispute is in the plaintiffs, then all the plaintiffs can claim in a case like this is that they should be allowed to have a wall erected at the extremity of their own land on the eastern side, notwithstanding, whether that wall would result in closing the door and windows of the defendants in their western wall. In my opinion, this part of the contention has sufficient force, and, even Mr. S.N Dutta, appearing for the other side, has conceded that to that extend the order passed by the lower appellate Court should be modified. In the aforesaid decision in 36 Cal LJ 406 : (AIR 1923 Cal 256), their Lordships, while dealing with this aspect of the matter has observed that:

“The principle applicable to cases of this character is well-known and was explained recently in the case of Tustee Mondal v. Kenaram Mandal 34 Cal LJ 518 : (AIR 1921 Cal 231). But before we deal with the question, it may be useful to point out, as was done by Lord Westbury in Tapling v. Jones, (1865) 11 HLC 290 (305), that the expression ‘right to obstruct’ has a tendency to mislead. ‘If my adjoining neighbour builds upon his land and opens numerous windows, which look over my gardens or pleasure grounds, I do not acquire from this act of my neighbour any new or other right than I before possessed. I have simply the same right of building or raising any erection I please on my own land, unless that right has been, by some antecedent matter, either lost or impaired, and I gain no new or enlarged right by the act of my neighbour. The erection of a wall or other obstacle is, indeed, the only remedy available to a land-owner, if he is annoyed by the opening of new windows overlooking his ground; he can maintain no action nor can he obtain other relief at law or in equity; in building to obstruct new windows, however, he must be careful to avoid obstructing ancient lights: Re Penny and S.E Ry. Co. (1857) 7 EL and BL 660 : 110 RR 773; Turner v. Spooner, (1861) 1 Dr and Sm. 467 : 127 RR 192; Chandler v. Thompson, (1811) 3 Campbell 80 : 13 RR 756. To put the matter briefly, every one may build upon or otherwise utilise his own land, regardless of the fact that his doing so involves an interference with the light which would otherwise reach the land and building of another person. On the other hand, every man may open any number of windows looking over his neighbour's land, for the intereference with a neighbour's privacy or with his prospect, does not, by itself give the latter a cause of action, in the absence of other circumstances. If windows are so opened, the neighbour may, by building on his own land, obstruct the light which would otherwise reach them.”

9. Accordingly, the order given by the lower appellate Court directing that the defendants 1st party shall close the door and the windows in the western wall of their house within a month of the date of the decree, failing which they shall be closed at their cost through the processes of the Court is set aside and it is ordered that it shall be open to the plaintiffs to erect their own walls or such other structisree as they may choose on their own land on that side, notwithstanding the fact that as a result thereof the door and the windows of the defendants 1st party in their western wall may get permanently blocked and closed. In the result subject however to the modification as stated above, the decree of the Court below shall stand confirmed and the appeal dismissed, but in the circumstances of the case there will be no order as to cost.

CF/K.S.B

10. Appeal dismissed.