Windows facing a common passage do not warrant injunction absent physical encroachment or obstruction.

The plaintiff and the first defendant were brothers whose family properties were partitioned by a registered deed dated 26 August 1996. The plaintiff received the ‘E’ Schedule property, the first defendant received the ‘F’ Schedule property, and the ‘G’ Schedule passage was allotted for common use by the plaintiff and the owners of the ‘B’ Schedule property.

The plaintiff alleged that the defendants’ windows, ventilators and pipelines interfered with his rights over the passage, and sought declaratory and injunctive reliefs.

The trial court decreed the suit, but the First Appellate Court reversed that decision and dismissed it, finding no projection into the passage or other established obstruction.

The plaintiff appealed under Section 100 CPC.

1. Whether the partition deed extinguished easementary rights, and whether the First Appellate Court could hold that a statutory easement could not be relinquished by document.

2. Whether the First Appellate Court disregarded the partition deed’s recitals contrary to Sections 91 and 92 of the Evidence Act.

3. Whether the suit could fail for non-joinder of the ‘B’ Schedule owner, having regard to Order I Rules 9 and 10(2) CPC.

4. Whether the First Appellate Court overlooked the provisions for extinguishment of easements under Sections 37, 38, 39, 43 and 48 of the Easements Act, 1882.

The Court considered Sections 37, 38, 39, 43 and 48 of the Indian Easements Act, 1882, which provide for extinguishment of easements in specified circumstances, including dissolution of the servient owner’s right, release, revocation and permanent change in the dominant heritage; accessory rights also end when the easement is extinguished.

It also considered Sections 91 and 92 of the Indian Evidence Act concerning proof of documentary terms and restrictions on contradicting or varying them by oral evidence, and Order I Rules 9 and 10(2) CPC concerning non-joinder and addition of parties.

The Court’s central approach was that injunctive relief required proof of an actual encroachment or interference; a claim that the defendants’ construction lay wholly within their own allotted property did not, without such proof, establish entitlement to relief.

The Court accepted the First Appellate Court’s factual assessment of the Commissioner’s report and plan: the windows and ventilators were within the ‘F’ Schedule property, the pipelines did not project into the ‘G’ Schedule passage, and the exhaust fan opened to the sky and was not shown to cause the alleged interference.

The defendant was not asserting an easement over the ‘G’ Schedule passage, but claimed to enjoy light and air through openings in his own property; accordingly, the Court held that the partition deed’s easement-extinguishment recital and Sections 91 and 92 did not determine the dispute.

It further held that the suit had not been dismissed solely for non-joinder and that the statutory provisions on extinguishment did not assist the plaintiff in the absence of a proven encroachment or actionable interference.

The Court upheld the First Appellate Court’s dismissal of the suit, and dismissed the second appeal without costs. The connected miscellaneous petition was closed.