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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 321 of 1999
Appellant : Sitaram son of Mahagu Bandabuche,
aged about 50 years, occ: Cultivator,
resident of Mahalgaon, Tahsil Mohadi,
District Bhandara
versus
Respondents : 1) Ashok son of Gopalrao Bhongade, aged
about 35 years, occ: Cultivator,
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
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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
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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
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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
(c) Is it proved by the plaintiff that due to the act of
the defendants he sustained damage of Rs. 2000/- ? ..
No
(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
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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
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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
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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
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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
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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
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