Case Note & Summary
The case involves an appeal from an order of the City Civil Court, Bombay, which granted a temporary injunction in favor of the plaintiffs (respondent Nos. 1 to 10) restraining the defendants (appellants) from constructing a new building abutting Alexander Heights, where the plaintiffs had purchased flats. The plaintiffs had occupied their flats since 1992 and contended that the defendants could not construct another building on the same plot without their approval. The trial court accepted this argument and granted the injunction. The defendants appealed, arguing that the plaintiffs had no right to prevent construction on the adjoining portion of the same plot, as there was no easement of light and air or any contractual obligation requiring the plaintiffs' consent. The High Court examined the pleadings and found that the plaintiffs had not pleaded any easement rights or any agreement that required their consent for further construction. The court noted that the plaintiffs' only grievance was that the new construction would block their light and air, but such a right could only be acquired by grant or prescription, which was not established. The court also observed that the balance of convenience was in favor of the defendants, as the plaintiffs had not made out a prima facie case. Consequently, the High Court allowed the appeal, set aside the trial court's order, and dismissed the notice of motion. The court clarified that the observations were only for the purpose of deciding the interim application and would not affect the final disposal of the suit.
Headnote
A) Property Law - Easement Rights - Right to Light and Air - Flat purchasers cannot restrain construction on adjoining portion of same plot unless they have acquired easement rights or there is a contractual stipulation - The court held that the plaintiffs failed to establish any right to prevent the defendants from constructing another building on the same plot, as no easement of light and air was proved and no consent clause existed in the sale agreements (Paras 4-6).
Issue of Consideration
Whether flat purchasers in a building can restrain the developer from constructing another building on the same plot abutting their building, in the absence of any agreement requiring their consent.
Final Decision
Appeal allowed. The impugned judgment and order dated 27th October, 2005 passed by the City Civil Court, Bombay in Notice of Motion No.1436 of 2004 in S.C. Suit No.1795 of 2004 is set aside. Notice of Motion No.1436 of 2004 stands dismissed. Civil Application No.155 of 2006 also stands disposed of. No order as to costs.
Law Points
- Easement rights
- Right to light and air
- Consent of flat purchasers
- Construction on adjoining property
- Prima facie case
- Balance of convenience
Case Details
2006 LawText (BOM) (02) 22
Appeal from Order No.126 of 2006 with Civil Application No.155 of 2006
Mr. Y.S. Jahagirdar for Atul Damle for appellants, Mr. Clive D'souza for respondent Nos.1 to 10, Ms. S.A. Musle i/b Cliford Martis for respondent No.12, Mrs. Joglekar for BMC
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal from order granting temporary injunction in a suit for injunction restraining construction of a new building.
Remedy Sought
Appellants sought setting aside of the trial court's order granting temporary injunction against them.
Filing Reason
Respondents (plaintiffs) filed suit to restrain appellants from constructing a new building abutting their building Alexander Heights, claiming they had purchased flats and occupied them since 1992, and that construction without their consent would block light and air.
Previous Decisions
Trial court allowed Notice of Motion No.1436 of 2004 in S.C. Suit No.1795 of 2004, granting temporary injunction in favor of respondents/plaintiffs.
Issues
Whether the plaintiffs have a right to restrain the defendants from constructing a new building on the same plot abutting their building?
Whether the plaintiffs have made out a prima facie case for grant of temporary injunction?
Submissions/Arguments
Appellants argued that the plaintiffs have no right to prevent construction on the adjoining portion of the same plot, as there is no easement of light and air or any contractual obligation requiring their consent.
Respondents argued that they have occupied their flats since 1992 and the new construction would block their light and air, and therefore the defendants cannot construct without their approval.
Ratio Decidendi
Flat purchasers cannot restrain the developer from constructing another building on the same plot abutting their building unless they have acquired easement rights (such as right to light and air) by grant or prescription, or there is a contractual stipulation requiring their consent. The mere fact of occupation does not create such a right.
Judgment Excerpts
The basis on which interim relief was sought by the plaintiffs/respondent Nos.1 to 10 is that they have purchased flat in the building known as Alexander Heights...
The trial Judge has proceeded on the basis that the plaintiffs have made out a prima facie case and balance of convenience is in their favour...
In the present case, the plaintiffs have not pleaded any easement right nor any agreement that the defendants cannot construct without their consent.
Procedural History
Respondent Nos.1 to 10 filed S.C. Suit No.1795 of 2004 in City Civil Court, Bombay, and took out Notice of Motion No.1436 of 2004 for temporary injunction. The trial court allowed the notice of motion on 27th October, 2005. The defendants (appellants) filed Appeal from Order No.126 of 2006 in the High Court of Bombay, which was heard and disposed of on 21st February, 2006.
