K L VIRMANI Vs. IIIRD ADDITIONAL DIST JUDGE

JUDGEMENT

(1.) The petitioner is a tenant of premises 3, Convent Road Dehradun. Smt. Sarla Devi Sharma is the owner/land-lady of the house. Towards east of the said accommodation exists a servant tenament after the boundary wall where three opening for outlet for water, rain and flood water used to flow since long. The servient tenaments (premises 35/1 had always been on lower level than that of dominant tenament. The respondent No. 3, Dr. M. Singh, started raising constructions over the servient tenament in the month of November, 1982, through architect Sri S.A. Khan who was his agent. The petitioner apprehended that the three existing out lets in the boundary-wall openings to the servient tenament was going to be closed by respondent. A civil suit was thus filed by the petitioner impleading Dr. M. Singh as defendant No. 1 and S. A. Khan as defendant No. 2 seeking injunction restraining the defendants Nos. 1 and 2 for closing or disturbing the flow of the water of the dominant tenament through the three outlets in the eastern boundry-wall. The petitioner is a tenant in the premises in question i.e. the dominant tenement since 1955. The allegation in the plaint was that the dominant tenament was enjoying the easementary right of flowing all rain and flood water through the three outlets in the boundary-wall towards the servient tenament since more than 50 years back, and has matured right of easement. The original suit was filed on 25-11-1982 with an application for interim injunction. The Court was pleased to issue an ad-interim injunction on 26-111982 as under :- "............ Issue notice, fixing 20-12-1982 for objection and disposal. Meanwhile the defendant No. 1 is restrained from closing the outlets in suit or from obstructing the flow of water from these outlets or get the same done through defendant No. 2 ............" The injunction order was communicated by registered post on 26-11-1982 and personally served to respondent No. 3 on 3-12-1982. The defendant No. 2 Sri S. A. Khan was also served with a copy of the interim injunction.

(2.) It is said that the defendant-respondent No. 3 of the writ petition had visited from Bombay between 3-12-1982 to 20-12-1982. On 20-12-1982 an application was filed on behalf of respondent No. 3 in the civil suit seeking time for filing objection to the injunction application which was allowed. Winter vacation in the meantime intervened. The petitioner had submitted an application on 21-12-1982 for issuing the commission for reporting the spot position at the disputed site. Sri Naresh Kumar was appointed as an advocate-commissioner for the said purpose. In between 20-12-1982 and 25-12-1982, respondent No. 3 and Sri S.A. Khan, the architect, got the land of the servient tenament filled and covered with earth up to such high that all the three outlets in the eastern boundary of the petitioner's dominant tenament were closed. The advocate-commissioner submitted a report that the level of the land was raised freshly by filling by earth. The report was submitted before the court on 2-2-1983.

(3.) The petitioner filed an application under O. 39, Rule 2A of the Code of Civil Procedure, C.P.C. in brief, for action against respondent No. 3. Opposite party filed his objection in the said case on 26-4-1983.