1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is filed by the original defendants against whom the respondent filed Civil Suit No. 49 of 1984 in the Court of learned Civil Judge, (Junior Division), Mandvi -Kachchh, praying for removal of construction of roof made of cement concrete over common passage known as 'Vicheni' by the appellants and for permanent injunction restraining the appellants from making any such kind of construction in future on the land of 'Vicheni'.
2. A margin or space left by the owners of two adjoining properties for their common usage is commonly known as 'Vicheni' and on such common space left by the two owners, no construction is permissible.
3. Since the appellants have put up construction on such margin land, the respondent had to file the above said suit with the prayers stated above.
4. The suit was resisted by the appellants by filing written statement at exhibit 25 stating that at no point of time, any open space occurred between the two houses and what is called as 'Vicheni' by respondent, is an open space on the first floor between the rooms of the houses, that there was no door on the southern side of the property of the respondent to go in 'Vicheni' and from very beginning there was already glass made roof on the 'Vicheni' on the said upper floor and by removing such glass made roof, the respondent had placed wooden made and then cement concrete roof and no other changes were made by the respondent. Therefore, there was no question of making use of common space by the appellants by constructing cement concrete roof over the 'Vicheni'.
5. Learned Trial Judge, framed following main issues as under:
1. Whether the plaintiff proves that the suit land 'Vicheni' was open ?
2. Whether the plaintiff proves that by making new construction over the 'Vicheni', the rights of the plaintiff as regards light, air and privacy were violated ?
6. Learned Trial Judge on the basis of the evidence and on construction of documents at exhibits 48 and 49 came to the conclusion that there was open 'Vicheni' between the two houses, whereon the appellants had put up cement concrete roof and violated the rights of the respondent to get light, air and also of privacy. Ultimately learned Trial Judge allowed the suit and ordered the appellants to remove the construction of cement concrete roof made over the 'Vicheni' and to open the space by removing the wall between the two houses and to make open the door on the southern side of the 'Vicheni' so as to fall on the public route.
7. The appellants unsuccessfully carried the matter before the learned First Appellate Court by filing Regular Civil Suit No. 46 of 1988 in the Court of learned Assistant Judge at Bhuj and Kachchh. Learned Appellate Judge on appreciation of evidence and on construction of the documents at exhibits 48 and 49 and also the document at exhibit 59 which was drawn by the City Survey Officer, found as a matter of fact that these two documents at exhibits 48 and 49 whereof 30 years old and where from it was very clear that there was 'Vicheni' open land between the houses of the parties and through roofs of both the houses the rain water fell in 'Vicheni'. Learned Appellate Judge also found from the 'Map' of City Survey Office, that there was already a 'Vicheni' between the two houses being City Survey Nos. 1045 and 1059. Learned Appellate Judge on further appreciation of the evidence of the witnesses found that there was also a public road passing through the 'Vicheni' from its southern side, which was closed by the appellants for the purpose of making repairing of 'Vicheni'. Thus, considering the evidence available on record, learned Appellate Judge also came to the conclusion that there was a 'Vicheni' in existence for common use of the parties and it was not open to the appellants to make construction over the said 'Vicheni'. Learned Appellant Judge, ultimately, dismissed the Appeal by judgment and order dated 31.08.1996 and confirmed the judgment and decree passed by the Trial Judge.
8. This Appeal was admitted by order dated 7.11.1996 on the following substantial questions of law.
I. ”Whether on the facts and in the circumstances of the case, both the Courts have substantially erred in law in adjudicating easementary rights in favour of the respondent without joining the owner of the property as a party to the suit?
II. Whether on the facts and in the circumstances of the case, both the Courts have substantially erred in law in holding that the suit for mandatory injunction was not barred by limitation?”
9. I have heard learned advocates for the parties.
10. Learned advocate for the appellants Mr. Y.S. Mankad has submitted that the Courts below have committed grave error in misinterpreting and misconstruing not only the documents available on record but also misreading all other evidences available on record and has wrongly come to the conclusion that there was a common 'Vicheni' between the houses of the parties.
11. Learned advocate Mr. Mankand submitted that in this very matter, there was an interim order below exhibit 30 passed by the learned Trial Judge, wherein on the basis of the Panchanama drawn by the Commissioner, learned Trial Judge recorded that there was a common wall between the two houses and there was nothing like 'Vicheni' and therefore, learned Trial Judge has simply restrained the appellants from peeping inside the rooms of the respondent and from doing any other damaging work to the property of the respondent till the suit was finally heard and decided. From this interim order, learned advocate Mr. Mankand pointed out that when the learned Trial Judge while deciding interim application did not find 'Vicheni' between the two properties, the suit was not required to be allowed and no relief for removal of the construction required to be granted.
12. Mr. Mankad further submitted that the documents relied on by the Courts below were the documents in respect of the properties of the respondent and whatever stated in those documents could not have been taken as a base for deciding the existence of 'Vicheni' between the two houses. He stated that there was no other independent evidences to prove the existence of 'Vicheni' between the two properties. Mr. Mankad submitted that in fact what is called as 'Vicheni' for the purpose of these proceedings before the Trial Court was the open gap at the first floor level between the two properties and there was never at any point of time any space or margin between the two properties on the ground floor. Therefore, in fact there was no 'Vicheni' gap open between the two properties for common use of the parties. He submitted that this important aspect of the matter was lost sight by both the Courts below and the Courts below have unnecessarily given importance to irrelevant documents. He further submitted that instead of considering the crucial and relevant materials produced by the appellants, the Courts below have decided the case on the basis of the documents produced by the respondent though there was no independent proof that there was existence of 'Vicheni' at any point of time. He submitted that right of 'vicheni' between two properties could not have been recognized by the Courts below in absence of joining the original owner in the proceedings. learned advocate Mr. Mankad further submitted that even the suit was also time barred and in such time barred suit, no mandatory injunction could have been passed against the appellants and therefore, on both the substantial questions of law, learned advocate has urged to allow this Appeal.
13. In reply, learned advocate Mr. C.H. Vora appearing for the respondent has submitted that the Courts below have recorded the findings of fact on the basis of evidence available on record about the existence of 'vicheni' between two properties right from the ground level and the appellants have failed to make out any case to dislodge such findings of fact recorded by the Courts below. Learned advocate Mr. Vora submitted that it is not the case of the appellants that the findings of fact were recorded either on misreading of the evidence before the Courts below or misinterpretation of any of the
construed the documents at exhibits 48,49 and 59 which were drawn from the office of City Survey and have rightly come to the conclusion that there was existence of 'Vicheni' right from the existence of the property and such findings of fact cannot be brushed aside simply on the oral arguments of the appellants. Mr. Vora submitted that interim order passed in the suit below exhibit 30 cannot be relied on when the Courts below have finally adjudicated the rights of the parties on the basis of the evidence available on the record. Mr. Vora also submitted that there was no question of joining the owner of the property in the suit because the suit was basically for the purpose of seeking orders against the appellants, who were tenants in the property and who had unauthorizedly constructed cement concrete roof over the common 'Vicheni' and if the rights as regards light, air and privacy of the respondent were violated at the hands of the appellants, who were holding the property as tenants, the respondent was justified in filing the suit without joining the owner of the property.
14. As regards, the plea of the suit being time barred, learned advocate Mr. Vora submitted that after putting up unauthorized construction on the 'Vicheni' land by the appellants, the suit was immediately filed for removal of such construction and the Courts below also found on the basis of the evidence available on record, that such suit was within time limit. The rights as claimed by the respondent were purely against the appellants, who were holding the property as tenants and it was against illegal action of such tenants and, therefore, the suit was filed for removal of such construction immediately. Such suit could not be said to have been filed beyond time limit. He, therefore, submitted that none of the substantial questions of law has arisen for the consideration of this Court and the question raised by learned advocate Mr. Mankad for the appellants are the question of facts, much less the question of law. Mr. Vora thus urged to dismiss the Appeal as the appellants have totally failed to point out any substantial error committed by the Courts below.
15. Having heard learned advocates for the parties and having perused the judgment and decree passed by both the Courts below with record and proceedings made available for the Court, it appears that the appellants who were tenants in their property, adjoining to property of the respondent were found as a matter of fact, to have made unauthorized and illegal construction of cement concrete roof over 'Vicheni' land.
16. At this stage, the Court is informed that the appellants who were tenants in the said property had already vacated the property long before, and the property has been lying totally vacant for last many years. However, the unauthorized and illegal construction of cement concrete roof over the 'Vicheni' land has still remained. Mr. Vora pointed out that though the original owner of the property has been staying at Mumbai, but the respondent has been still suffering because of existence of unauthorized and illegal construction of cement concrete roof over the 'Vicheni' land and in absence of removal of unauthorized construction, the respondent would continue to suffer towards their rights of enjoyment of light, air etc.
17. The Courts below have considered exhibits 48 and 49. This Court has also gone through the exhibit 48 which is a document of Samvant 1995 i.e. before about thirty (30) years of filing of the suit wherein it is clearly mentioned that on the southern side of the property of the respondent, there is property of the landlords of the appellants and between the two properties, there exist 'Vicheni' land and from the roof top on the back portion of the properties, provision is made for allowing the rainy water to go down on 'Vicheni' land and on the back portion of the property of the respondent, the windows were shown existing in the property. Similarly, in document exhibit 58, which is Map of City Survey Office, open space between the two properties is discribed from the ground level. The two properties of the parties are being City Survey Nos. 1045 and 1059 and between the very properties, a open space of 'Vicheni' is found. Over and above, the documentary evidence, one witness was examined by the respondent named Champaklal Bhatt who also supported the case of the respondent by stating that 'Vicheni' land was already in existence on the back portion and the southern side of the property of the respondent and this 'Vicheni' land which remained all throughout open and was recently closed. It was also further stated by this witness in his deposition, that the public way which was also there on the southern side to the 'Vicheni' was closed by the appellants and it was not possible for the respondent to go to his property even for the purpose of repairing. I have gone thorough the above documentary evidence as also the oral evidence and I find that both the Courts below on the basis of such evidence have recorded correct findings of fact to the effect that there was in existence of 'Vicheni' right from the inception of existence of the two properties. I also find that the grievance and the complaint made in the suit by the respondent was against the appellants who were just holding the property as tenants and who had indulged in unauthorized and illegal construction by putting up cement concrete roof over the 'Vicheni' which was meant for common use of the parties. Therefore, in my view, for such suit non-joinder of the owner of the property held and occupied by the appellants would not make the suit of the respondent not maintainable.
18. As regards, the plea of limitation raised by learned advocate Mr. Mankad for the appellants, it is required to be noted that such plea on the basis of the evidence available on record has rightly been turned down by the Courts below because as per the oral evidence of one of the witnesses, the appellants had constructed the cement concrete roof over the 'Vicheni' recently before the suit whereby the rights of the respondent were greatly violated. Therefore, I do not find any error committed by both the Courts below, in holding that the suit was within the time limit.
19. Lastly, Mr. Mankad pointed out that the relief granted by the learned Trial Judge and confirmed by the learned Appellate Judge was beyond and in excess of the prayer made by the respondent in the suit. He submitted that the prayer in the suit was in respect of the removal of cement concrete roof over the 'Vicheni' land and for permanent injunction, however, the Court below has granted relief even to the extent of directing the appellants to remove the wall from ground level so as to make the 'Vicheni' open for the common use of the respondent.
20. I do not find any substance in this contention. When it is found by both the Courts below that there was existence of 'Vicheni' between the two properties, which was meant for common use of the parties, such kind of further relief was required to do complete justice.
21. In view of the above, this Appeal is required to be dismissed. Hence it is dismissed. Interim relief, if any, stands vacated.
Braj..
[C.L. Soni,J.]