Punjab-Haryana High Court
Bakshi Ram vs Bhagat Ram & Others on 14 May, 2012
Author: Hemant Gupta
Bench: Hemant Gupta
R.S.A.No.1571 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.1571 of 1991
Date of Decision : 14.05.2012
Bakshi Ram ...Appellant
Versus
Bhagat Ram & others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vinay Saini, Advocate, for
Mr. G.S.Nagra, Advocate,
for the appellant.
HEMANT GUPTA, J. (ORAL)
The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for permanent injunction restraining the defendants from demolishing any part of the drain marked as ABCDEFG was dismissed.
The plaintiff sought a decree for permanent injunction restraining the defendants from demolishing any part of the drain marked as ABCDEFG and that defendants be restrained from blocking, obstructing the daily/rainy water of his house shown as X in the site plan through the said drain. The stand of the defendants in the written statement was that the drain is in existence for the last 100 years and that water of the defendants' house flows to the Northern side, but the plaintiff to harass the defendants blocked the R.S.A.No.1571 of 1991 2 dirty water of the defendants' house in front of his house. The defendants have pleaded that the drain is situated in a public lane and that the Civil Court has no jurisdiction to entertain the suit, as the same vests in the Gram Panchayat. The parties went to trial on the following issues:
1. Whether this Court has jurisdiction to entertain and try the present suit under Village Common Land Act? OPD
2. Whether the suit is bad for non-joinder of Gram Panchayat as necessary party? OPD
3. Whether the suit is barred under Section 11 CPC? OPD
4. Whether the plaintiff is entitled to injunction as prayed for?
OPP
5. Relief.
Subsequently, since the defendants have amended their written statement, the following additional issues were framed:
4A. Whether suit is barred by provision of order 23 rule 1 CPC?
OPD 4B. Whether suit is bad for want of cause of action u/O 7 rule 11 CPC? OPD
5. Relief.
After considering the evidence, the learned trial Court returned a finding that the jurisidction of the Civil Court is not barred holding that there is no evidence that the drain was ever constructed by the Gram Panchayat. Therefore, the drain in dispute was in the private management and arrangement of the parties. On merits, it was found that earlier the plaintiff and the defendants were parties in the civil suit, which was decided on 28.10.1986 vide judgment Ex.D3. In the said suit, the plaintiff Bakshi Ram and one Jagta were the defendants and they made statements that water R.S.A.No.1571 of 1991 3 from their houses would flow in drain constructed underground by them, which means that the plaintiff abandoned his rights to discharge the water of his house in the drain in dispute. It was found that the present suit was filed on 06.09.1986, but subsequently, the plaintiff has abandoned his right to discharge daily/rainy water in the drain in dispute. Thus, the plaintiff is not entitled to claim any injunction after the said statement.
I have heard learned counsel for the appellant and find no merit in the present appeal. After the filing of the present suit on 06.09.1986, the plaintiff made a statement in another suit filed by the defendants that he shall discharge his daily/rainy water through the underground drain constructed by them. In view of the said statement, the plaintiff cannot seek injunction. Both the Courts below have recorded pure findings of fact. Such findings of fact are sought to be disputed only by re-appreciation of evidence, which is not permissible. Such findings do not give rise to any substantial question of law, as the same are based upon the appreciation of evidence.
Consequently, I do not find that any substantial question of law arises for consideration by this Court in the present appeal.
Dismissed.
14.05.2012 (HEMANT GUPTA) Vimal JUDGE