ANGURI Vs. JIWAN DASS

JUDGEMENT

(1.) The appellants before us were the defendants and the two respondents were the plaintiffs in the Civil Suits Nos. 294 of 1979 and 421 of 1979 respectively, in the court of the learned Sub-Judge, Palwal. Both these suits raised common questions of fact and law and were decided by a common judgment.

(2.) We shall refer to the parties by their original descriptions in the suit. There is no controversy about most of the facts relevant for the disposal of this Appeal.

(3.) The plaintiffs are the owners of two houses adjacent to each other and also to the property of the defendants. The defendants had a structure on their own property. On the roof of that structure they had made three morries (narrow outlets for the outflow of dirty water). These morries opened towards the property of the plaintiff. In an earlier suit, the defendants had obtained an injunction directing the plaintiffs not to block the flow of dirty water from the said three morries. The defendants were, however, permitted to fix up pipe lines of a suitable size at their own costs to receive the said water and carry it to a nali (drain) towards the East of their houses. The plaintiffs complied with the terms of the decree granting the said injunction. The defendants then raised the height of the first floor of their structure by three feet and on a part of the terrace over the first floor they constructed two additional storeys. In raising the height of the roof over the first floor, the defendants blocked the three original morries and opened three new morries on the roof over the first floor and opened six more morries on the respective terraces over the second and third floors in the new construction. They opened all the morries in such a way that the outflow of water from all the said morries was directed towards the properties of the plaintiffs. The defendants also constructed new windows which opened towards the houses of the plaintiffs. The plaintiffs blocked these new windows by raising the height of their respective walls and the defendants claimed the right to break these walls which obstructed the view from their new windows. On these facts, the plaintiffs filed the said suits in the court of the learned Sub-Judge praying for a permanent injunction restraining the defendants from using the said new morries and from opening the said windows. The plaintiffs claimed that the outflow of water from the said morries damaged their properties. During the course of hearing the suits, there was a spot inspection by a learned Sub-Judge in the end of May, 1979. In that inspection, it was noted that there were no signs of the old morries and that six new morries were opened by the defendants on the upper storeys newly constructed by the defendants and that six new windows were also constructed by the defendants on their upper storeys. The plaintiffs claimed that by closing the old morries, the defendants had lost their right of easement to discharge water through their old morries and, in any event, as six more morries in all were constructed in their building by the defendants they had increased the burden of easement on the properties of the plaintiffs. The defendants had no right to do this. The plaintiffs further contended that they were entitled to block the new windows opened by the defendants by raising the height of their walls and that the newly constructed windows had affected their right of privacy. The learned Sub-Judge granted the injunction as prayed for by the plaintiffs. The defendants filed an appeal which was disposed of by the learned Additional District Judge II, Faridabad. The learned District Judge in the course of his judgment has pointed out that there is no street or narrow gali between the properties of the plaintiffs and the defendants as appears to have been in existence at the time when the earlier suit, where the defendants had secured an injunction as stated earlier was decided. He has further pointed out that the nine new morries opened by the defendants are causing heavy damage and loss to the respective houses of the plaintiffs. The Second Appeal preferred by the defendants to the High Court of Punjab and Haryana was dismissed in limine. The present appeal has been preferred by the defendants against the judgment of the High Court by Special Leave granted under Article 136 of the Constitution.