Case Note & Summary
The dispute pertained to interpretation of a trial court decree in a suit concerning right to light and air over the northern wall of the plaintiffs' house. The respondents (original plaintiffs) had obtained a decree declaring that the defendants had absolutely no right to close windows and ventilators causing diminution of light and air, directing removal of offending structures within two months, and permitting the defendants to raise their wall after leaving a set back of 3 feet from the northern wall. The appellants (original defendants) contended that even the construction made in 1947-48 up to the first floor was being sought to be removed by wrong interpretation of the decree. They claimed that their construction was later in point of time though the plaintiffs had not objected, and they objected to demolition of any existing structure except the one constructed in 1982-83. The Supreme Court had issued notice confining to this limited question. During hearing, counsel for respondents placed a photograph showing a double-storeyed building and an offending wall constructed recently. The trial court, appellate court, and High Court had concurrently found that the offending wall was constructed recently. The Commissioner's report (Ex.1) and Field Book 1/A supported this finding. In view of these findings, the Court held that the appellants' apprehension that the existing double-storeyed building would be demolished was unfounded. The Court directed that only the unauthorized construction made by the appellants is to be demolished, as found by the Commissioner. The appeal was disposed of with these directions and no costs.
Headnote
A) Civil Procedure - Execution of Decree - Scope of Demolition Direction - Not mentioned - The Supreme Court considered the limited question whether the trial court's decree required demolition of the pre-existing double-storeyed building constructed in 1947-48 or only the unauthorized construction made recently. The Court examined a photograph and the Commissioner's report (Ex.1 and Field Book 1/A) and noted concurrent findings that the offending wall was constructed recently, and thus the apprehension of the appellants was unfounded; Held that only the unauthorized construction made by appellants is to be demolished, not the existing double-storeyed building (Paras 1-2). B) Property Law - Easementary Right to Light and Air - Contractual Right under Sale Deed 1921 - Not mentioned - The trial court's decree declared that defendants had no right to close windows/ventilators causing diminution of light and air, and permitted defendants to raise wall only after leaving a set back of 3 feet from northern wall. The Supreme Court observed that the existing structure from 1947-48 was not to be removed, but the recently constructed wall interfering with these rights was unauthorized; Held that the right to light and air based on the 1921 sale deed must be preserved by removing only the offending recent construction and maintaining set back (Paras 1-2).
Issue of Consideration
Whether the trial court's decree required demolition of the pre-existing double-storeyed building constructed in 1947-48 or only the unauthorized construction made recently by the appellants.
Final Decision
The appeal was disposed of with directions, holding that the apprehension of demolition of the existing double-storeyed building was unfounded. Only the unauthorized construction made by the appellants, as found by the Commissioner (PW-8, Ex.1, Field Book 1/A), is to be demolished. No costs were awarded.
Law Points
- Interpretation of decree
- execution of decree
- right to light and air
- easementary rights
- unauthorized construction
- demolition order
- set back condition
- concurrent findings of fact
