GANGA BRICKS UDHYOG Vs. JAI BHAGWAN SWARUP

JUDGEMENT

(1.) This First Appeal from order has been filed by the defendants against the order dated 25lh Nov., 1981 issuing a temporary injunction against them restraining them from working their brick kiln till the disposal of the suit.

(2.) The plaintiffs respondents filed a suit for injunction with the allegation that plots Nos. 1979/2, area II Biswas, 1980 area 1 Bigha 2 Biswas and 1982 area 2 Bigha 10 Biswas constituted a grove of plaintiff No. 1 and his brothers. The plaintiff No. 2 had entered into a registered agreement for purchase of the property aforesaid for a consideration of Rupees 1,50,000/-. The aforesaid plots constituted a compact grove where there were 55 trees of mangoes, 69 trees of shisham, one tree of Jamuaya and one tree of Jamun and one tree of Bel. All the trees were fully grown up and the mangoes, Jamuniya and Jamun were bearing fruits. The defendants-appellants had installed a brick kiln in plots Nos. 1977, 1978 and 1979/1. By the working of the brick kiln the trees of the plaintiff's grove would die and due to the smoke trees will be damaged by the coal dust and the various harmful gases like Carbonic acid, sulpher compound, Sulpher Dioxide etc. The suit was filed for a permanent injunction restraining the defendants from working the brick kiln.

(3.) A written statement was filed refuting the case of the plaintiffs and further alleging that the defendants' brick kiln was not going to affect the plaintiffs' groves. It was further alleged that the defendants had obtained a licence for working the brick kiln in Oct., 1981 and started constructing the kiln. The plaintiffs knowingly kept quiet and when the brick kiln was to be fired the suit was filed against the defendants. The suit itself has been filed on 12-11-1981. A commission was issued, whose report is on page 21 of the respondents' paper book. It is accompanied by a map on page 24. The court below has considered the various objections and after considering the prima facie case held that the trees of the plaintiffs wore liable to be damaged by working of the brick kiln and issued the injunction. It may be mentioned that according to the map prepared by the Commissioner, which is not disputed before us, the brick kiln is adjacent to the grove. The trees of the grove are 54, 55 and even 60 feet high and the circumference of the trunks is up to 7' 9":