RSA 192/2000. Gauhati High Court
| Case Number | RSA 192/2000 |
| Judgement Date | June 04, 2013 |
| Court | Gauhati High Court |
RSA NO. 192/2000
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Sri Jawed Rahman
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Sri Aslam Tariq Rahman
Both are sons of late MuhibarRahman, Resident of south Amolapatty,
P.O. & P.S. Dibrugarh,
Dibrugarh , Assam.
… Appellants/Plaintiffs. -VersusOn the death of Badrul Huda
his legal heirs and representatives –
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SmtiRumena Huda Hazarika
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Sri Manirul Huda @ Jadu
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Miss Jinu Huda,
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Miss Ruma Huda
No. 1 is the widow No. 2 is the son and No. 3 and 4 are the daughters of late Badrul Huda,
All are residents of Sorumotorial, P.O. Sachivalaya, Dispur, Guwahati-6, Kamrup, Assam.
… Respondents/ Defendants.
For the appellants:-Mr. D.K. Das,
Ms. P. Bhuyan, Advocates. For the respondents:- None appeared.
PRESENT
HON’BLE MR. JUSTICE NISHITENDU CHAUDHURY
Date of hearing : 23.05.2013 Judgment delivered :04.06.2013
appeal and affirming the judgment and decree dated 3.5.1999 passed by Civil Judge (Jr. Divin.) |No. 2 Dibrugarh (now designated Munsiff No. 2) in title suit no. 2 in 1993 thereby dismissing the suit of the plaintiff. This appeal was admitted on
7.2.2001 on two substantial question of law and the same are as below :
“ (i). Whether the defendants can be allowed to raise any constructions without any permission from the authority under the Assam Town and country planning Act/ Assam Municipal Act and without leaving the required side margin thereby blocking the free access of air and light to the plaintiff land and if so, whether a decree for permanent injunction can be passed restraining the defendants from making any such construction ?
(ii). Whether the learned first appellate court , being the final court of facts, is required to discuss the evidences, both oral and documentary on record as required under Order 41 Rule 31 of the Civil Procedure Code ?
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From above it appears that the first substantial question of law involves four parts in itself. First, construction without permission under Assam Town and Country Panning Act, 1959/ Assam Municipal Act 1956 secondly , without leaving required side margin, hardly blocking free excess of Air and light and fourthly,
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law, it is necessary to narrate the facts of both the parties in short. The two plaintiffs , namely, Sri Jawed Rahman and Sri AshlamTariqueRahman both sons of Late MohiburRahman of South Amola Patty in Dibrugarh town instituted title suit no. 7/1993 against one Badrul Huda son of late Samsud Huda describing him as neighbor on the northern boundary of their residence. The case of the plaintiff in brief is that there was initially a six feet high boundary wall between the land of the defendants and that of the plaintiffs and they were enjoying free access of air and light to their rooms from that side without any disturbance and hindrance from anybody including the defendants. But all on a sudden the defendants raised the height of the wall from 6 feet to about 11 feet ignoring the protest of the plaintiff and allegedly without taking permission from the concerned development authority. According to the plaintiffs, the defendant did it on 15.5.1993 where upon the plaintiff lodged a complaint before the Deputy Commissioner who directed the officer in-charge of Dibrugarh police Station to do the needful. According to the plaintiff if the boundary wall is raised as attempted, the same would hinder free access of air and light to the plaintiffs. It was also contended that the defendant wasseeking to raise construction on the land without leaving set back of 10 feet in front and 5 feet on two sides on the proposed construction and that too without taking permission from the development authority
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employees etc. from raising any construction on the land described in the schedule to the plaint on the northern side of the boundary wall without leaving required space as per the Act and the rules of the Development Authority or Municipality and/or without obtaining valid permission from Dibrugarh Development authority. The plaintiffs also prayed for...
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