Appellant : Sitaram Son Of Mahagu ... vs Respondents : 1) Ashok Son Of Gopalrao ... on 22 June, 2010

[Cites 1, Cited by 3]

Bombay High Court

Appellant : Sitaram Son Of Mahagu ... vs Respondents : 1) Ashok Son Of Gopalrao ... on 22 June, 2010

2) Jaipal son of Gopalrao Bhongade, aged about 27 years, occ: Cultivator Both residents of Mahalgaon, Tahsil Mohadi, District Bhandara Ms Shilpa O. Tapadiya, Advocate holding for Mr A.M. Quazi, Advocate for appellant None appears for respondents ::: Downloaded on - 09/06/2013 16:02:49 ::: 2 Coram : A. P. Bhangale, J Dated : 22nd June 2010 Judgment

1. This appeal is filed at the instance of original plaintiff aggrieved by the judgment and order dated 22.3.1999 passed by the Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997 whereby the judgment and decree passed on 10.9.1997 in Regular Civil Suit No. 62 of 1994 by the Civil Judge, Junior Division, Mohadi was set aside and the suit was dismissed.

2. Parties are hereinafter referred to as per their original status in the suit.

3. The plaintiff had instituted Regular Civil Suit praying for mandatory perpetual injunction and damages. The plaintiff claimed that he possessed house property at village Mahalgaon bearing Gram Panchayat House No. 36/1 and the house of the defendant was adjacent to on the northern side bearing GP House No. 35/1 beyond which there was a public drainage and a road. It is claimed that both the houses originally belonged to one owner.

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Southern portion was purchased by the plaintiff while northern portion by father of the defendants. The plaintiff and the defendants became owners of respective portions of the house. It is contended that house of the defendants is situated towards lower level than the house of the plaintiff and the rain water from the premises of the plaintiff used to flow naturally towards the drain through the court-yard of the defendants since time immemorial and after the purchase of their respective portions of the said house by the plaintiff and father of the defendants.

4. In 1st week of June 1994 the defendants started constructing the compound wall to their house obstructing the natural flow of rain water. When the plaintiff objected, the defendants had assured the plaintiff that they will make necessary arrangement for disposal of rain water flowing from the premises of the plaintiff. Since the defendants completed construction of compound, but did not make any arrangement of drainage and closed the water course.

5. On 12.6.1994 and 17.6.1994 due to heavy rains the rain ::: Downloaded on - 09/06/2013 16:02:49 ::: 4 water accumulated in the court-yard and entered in the plaintiff's house made of mud wall causing damage to flooring, wall and household articles due to accumulated rain water. The plaintiff claimed damages of Rs. 2000/- for the illegal act of the defendants and held them liable for loss. The matter was also reported to the Police Station; Gram Panchayat and Tahsildar. The Authorities who visited the spot had asked defendants to open the water course for the water to flow from the premises of the plaintiff. But defendants remained adamant and did not follow directions from the Authorities concerned.

6. The plaintiff was constrained to issue notice dated 26.6.1994 to the defendants through Advocate which though defendants had received, did not comply nor any reply was given.

The plaintiff claimed that defendants shall arrange to provide water-

way to enable overflow of rain water from the premises of the plaintiff to flow under or through the premises/court-yard of the defendants towards the main drain which is situated beyond the house of defendants as rain water accumulated is harmful and ::: Downloaded on - 09/06/2013 16:02:49 ::: 5 injurious to the plaintiff and other neighbourers. The plaintiff claimed easementary right to better enjoy the premises owned by him and as necessity for accumulated rain water to flow away naturally towards lower levels of the land and to the main drains.

Thus, perpetual mandatory injunction was claimed against the defendants for direction that they shall break open the suit way as suggested in plaint and pay damages or any other relief as the Court may deem fit under the circumstances of the case.

7. The defendants had resisted the suit claim, disputed and denied the suit claim. According to them, their father had prepared the foundation on the compound fencing in the year 1981 for rain water/drainage water to flow through Nali towards north direction to connect to the main village drain constructed by Gram Panchayat. The defendants contended that one Ramdas Bandebuche had mischievously blocked Nali by putting the heap of clay and increased the height to prevent flow of rain water. It is not disputed that the plaintiff had lodged report to Police; Tahsildar, Mohadi and Gram Panchayat.

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8. The trial Court had framed and answered the issues as under :

"(a) Is it proved by the plaintiff that the rain water was flowing from the court-yard of the defendants since the time immemorable ? .. Yes

(b) Is it proved by the plaintiff that the defendants constructed compound wall and thereby water flow is obstructed ? ..

Yes

(d) Is the plaintiff entitled for mandatory injunction ? .. Yes

(e) Is the plaintiff entitled for damages ? .. No

(f) What relief and order ? .. As per final order.

The suit was decreed for permanent injunction. The trial Court which had benefit to view the witnesses while deposing ::: Downloaded on - 09/06/2013 16:02:49 ::: 7 before it, concluded that due to construction by the defendants rain water which flew from the plaintiff's premises was obstructed.

Thus, the trial Court had directed the defendants to reopen the drain which is shown in plaint map C-1 and to permanently restrain the defendants from blocking the water and damaging the drain by any means.

9. The 1st Appellate Court which allowed the appeal setting aside the decree, however, did not agree with the trial Court and held that the plaintiff had no right to pass water through the drainage and dismissed the suit. The judgment appears sans discussion of legal position in this regard.

10. The second appeal was admitted on 28.6.2001 and grounds 5, 6 and 7 contained in the memo of appeal were treated as substantial questions of law which read thus :

"(4) The appellate court ought to have considered that admittedly the houses owned by the plaintiff and defendant were previously owned by the common owner and in view of the legal position under the Easement ::: Downloaded on - 09/06/2013 16:02:49 ::: 8 Act that the property has been subdivided, each of the sub-division will have a right to use and enjoy the same by exercising all the rights for the reasonable enjoyment of their respective portion, however this legal preposition has not been considered by the appellate court by reversing the findings of the lower court.

6) The lower appellate court ought to have further appreciated that from the defence of the defendant itself the case of the plaintiff has proved as in the defence the defendant has taken the pleas that neighbourer Ramdas Bandabuche intentionally blocked that drain from which the water from the house of the plaintiff has been flowing for all these years without challenging the contention of the plaintiff of his right.

     7)    The         lower        appellate         court      ought        to        have





     appreciated       that     admittedly          since     last    more      than     20

years the water from the house of the plaintiff has been flowing through the court-yard of the portion of the ::: Downloaded on - 09/06/2013 16:02:49 ::: 9 house of defendant and therefore the right is created in favour of the plaintiff and that in case the defendant who has obstructed the flow of water by constructing the compound wall was not in any case justified in obstructing the flow of water and thus the appellate court ought to have confirmed the decree passed by the lower court."

11. I have heard submissions advanced on behalf of the appellant. The respondents remained absent. None appeared on their behalf.

12. Learned counsel for the appellant criticised the judgment and order of the 1st Appellate Court and took me through evidence on record and submitted that defendants have no right to construct unlawfully causing obstruction to natural flow of rain or drain water naturally flowing from higher level towards lower level on north side to the main drain of village. Reference is made to the ruling in Umrah Khatoon v. Md Zafir Khan and ors reported in AIR 1997 SC 1315.

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In the said case, the plaintiff had claimed title over suit lane and in the alternative, contended that if plaintiff's title is not to be accepted, the plaintiff had in any case acquired easementary right to discharge the drain water. The plaintiff's claim for easementary right was accepted by the trial Court as well as the 1st appellate court. Held, plea of non-maintainability of the suit cannot be allowed to be raised for the first time in the last court and that too after the defendant had lost on merit. Course of Justice should not be allowed to be thwarted on technical ground.

It was held that the prayer of the plaintiff to allow her to discharge drain water over the land in question is more in accord with justice than to deny it; as it had been found that plaintiff had in fact discharged the drain water through the lane for long many years. Decree of the trial Court was upheld.

13. The legal right of easement cannot be disputed on the ground that when a neighbourer by constructing compound wall by violating local laws of building construction or in a highhanded manner is attempting to obstruct the natural flow of drainage/rain ::: Downloaded on - 09/06/2013 16:02:49 ::: 11 water flowing naturally from higher level towards lower level of the land would furnish valid cause of action for a relief of perpetual injunction. The Court in such case is concerned with an important question as to whether the defendant shall be restrained from causing interference with the plaintiff's right ? The Court would expect the defendant to observe reasonable conduct and not to cause any interference or harm to the plaintiff's natural rights if not strictly speaking easementary right in the eye of law.

The substantial questions of law raised above shall, therefore, be answered accordingly. In the facts and circumstances of the case, in my opinion, the trial Court was well within its jurisdiction to grant permanent injunction to protect the natural right of the plaintiff by issuing an appropriate order to prevent defendants from obstructing the rain water/drain water naturally flowing from higher level of land towards lower level connecting through the drain towards the main drain on north side constructed by the village panchayat. There was no justification muchless legal one for the 1st appellate court to disturb merely on assumptions and surmises ::: Downloaded on - 09/06/2013 16:02:49 ::: 12 the findings recorded by the trial Court on merits.

14. In the result, therefore, the appeal is allowed with costs.

The impugned judgment and order dated 22.3.1999 passed by the 1st Appellate Court viz. Additional District Judge, Bhandara in Regular Civil Appeal No. 117 of 1997 is set aside. The judgment and decree passed by the trial court viz. Civil Judge, Junior Division, Mohadi on 10.9.1997 in Regular Civil Suit No. 62 of 1994 is restored by decreeing the suit accordingly.

A. P. BHANGALE, J hsj ::: Downloaded on - 09/06/2013 16:02:49 :::

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