Smt. Dharmo Devi vs Radhay Shyam

G.S. Sandhawalia, J.

Civil Misc. No. 6995-C of 2007.

Allowed as prayed for.

R.S.A. No. 2473 of 2007.

The present appeal has been filed by the unsuccessful plaintiff whose suit for permanent injunction has been dismissed by both the Courts below. The suit was for permanent injunction restraining the defendant to fill the open Nali shown in blue colour in the site plan or to block the water of the underground pipe or to remove the pipe shown in red colour in the site plan in any manner. The case of the plaintiff was that she was owner in possession of a residential house shown in green colour and the defendant was owner in possession of house shown in yellow colour in the site plan and 2-1/2" underground pipe had been installed by the plaintiff for letting out the rainy water of the house and the said pipe was installed at a depth of about 3 feet. It is alleged that area in front of the defendant is an open drain shown in blue colour and plaintiff installed the underground channel only to avoid damage to the foundation of the house of the plaintiff and defendant was a quarrelsome person. The defendant was alleged to have started blocking the open nali shown in the blue colour due to which rainy water could not pass. The plaintiff requested the defendant many times to connect another pipe of same diameter from point D to his boundary walls for the drainage of the water but the defendant was adamant to block the open nali and also to remove the underground pipe installed by the plaintiff.

The suit was contested by the defendant on various grounds including maintainability, estoppel and non joinder of necessary parties. It was replied that the open drain passed in front of the house of the defendant and other villagers had been constructed by the Gram Panchayat for discharge of rainy and household water and the plaintiff had damaged the said open drain in front of her house and installed 2-1/2" pipe which was grossly insufficient to pass rainy water and waste water. The said pipe got blocked, due to which the water was not discharged and got collected in front of the house of the defendant creating multifarious health and hygiene problem. Accordingly, it was pleaded that plaintiff had no right to damage the drain in front of the house of the defendant and laying of the pipe and constructing drain was the job of the Gram Panchayat and the plaintiff had no right to obstruct the discharge of water. It was pleaded that if the plaintiff wanted to lay any pipe in front of her house, the same should have been done in consultation with the Gram Panchayat and of proper specification so that it would not obstruct the free flow of water through the drain at the other ends. Accordingly, it was prayed that the suit be dismissed. The defendant also filed a counter claim and alleged that he was owner in possession of the house shown in yellow colour in the site plan and plaintiff had damaged the open drain constructed by the Gram Panchayat in front of his house and laid 2-1/2" pipe which was not sufficient for the drainage of the water. Therefore, it was prayed that mandatory injunction be granted directing the plaintiff to restore the said nali in its original condition.

On the basis of the pleadings of the parties, the trial Court framed the following issues:-

Whether the plaintiff is owner in possession of residential house as mentioned in para No. 1 of the plaint? OPP

Whether the plaintiff had installed 2-1/2 inches underground pipe for let out the rainy water of the house as alleged in para No. 3 of the plaint? OPP

Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP 3(a). Whether the defendant is entitled to the counter claim as prayed for? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff is estopped from filing the present suit by her own act, conduct and acquiescence? OPD

Whether the suit is malafide and has been filed to harass the defendant, if so to what effect? OPD

Whether the suit is bad for non-joinder of necessary party? OPD

Relief.

After taking into consideration the pleadings of the parties and the evidence on record, the trial Court came to the conclusion that the drain was in existence on a public street and plaintiff could not make any construction on the same and pipe laid by the plaintiff would amount to encroachment and, therefore, injunction could not be granted in favour of a tress-passer and the status of the plaintiff was as good as that of a tresspasser. The trial Court held that plaintiff had encroached upon the public street and had narrowed down the open drain constructed by the Gram Panchayat because of which inconvenience was caused to the defendant and health and hygiene problem had also been created. Accordingly, the trial Court granted the relief of mandatory injunction directing the plaintiff to restore the said drain to its original condition. The plaintiff was held to be owner in possession of the residential house to which there was no dispute. Regarding the maintainability of the suit, it was decided against the plaintiff and other issues were not pressed and as such decided against the defendant. Accordingly, the suit for permanent injunction was dismissed and the counter claim of the defendant was allowed and a decree for mandatory injunction was passed vide judgment and decree dated 15.11.2006 and plaintiff was directed to restore the drain to its original condition.

The plaintiff preferred an appeal before the Lower Appellate Court, which was dismissed on 26.5.2007. Resultantly, the present Regular Second Appeal has been filed. Counsel for the appellant has contended that there was misreading of evidence and as such judgments and decrees of the Courts below are not sustainable. The submission of the counsel is without any basis. The Courts below have come to a concurrent finding that the construction of the drain had been done by the Gram Panchayat in the public street in front of the house of the plaintiff and plaintiff was not the owner of the said drain and the owner was the Gram Panchayat. It has come on record that the underground pipe put by the plaintiff is not of sufficient diameter so that rainy water and waste water can be discharged though it and thus, it leads to blockage of the discharge on either side. Resultantly, the rainy water and waste water was piling up in front of the house of the defendant and leading to a nuisance. It was in such circumstances held that the plaintiff had no right to narrow down the open drain and, therefore, no injunction can be granted to the plaintiff. It was also noticed if the plaintiff wanted to cover the open drain then a request should have been moved to the Gram Panchayat for covering the drain but the installation of pipe having smaller diameter was not justified. No fault can be found with the reasoning of the Courts below as the action of the plaintiff herself had created not only a problem for herself which had led to unnecessarily litigation but also caused nuisance to one and all in the village who are using the said street. Resultantly, the Courts below had no option but to grant relief of mandatory injunction directing the plaintiff to restore the drain to its original condition. There has not been any misreading of any evidence as contended by the counsel and in the absence of any substantial question of law arising, the present appeal is not liable to be entertained and the same is dismissed.