RAJ SINGH Vs. CH GAJRAJ SINGH

JUDGEMENT

(1.) This appeal and cross-objection arise out of a suit to recover damages and to get a permanent injunction issued.

(2.) The respondent Gajraj Singh resides in the abadi of village Jalalabad and owns a grove situated on plot No. 793 of that village. The grove contains mango, guava, kamrakh and papaya trees and used to yield a profit of about Rs. 1,000 per annum to its owner. The appellant Raj Singh obtained a lease of plot No. 766 of the village and about four years before the institution of the suit which has given rise to this appeal started a bhatta for the construction of bricks an that plot. According to Gajraj Singh, this bhatta is situated at a distance of about! . 200 yards from the grove and about 100 feet from the village abadi where his residential house is situated. The Bhatta had been started in contravention of the bye-laws framed by the District Board in that respect. The smoke from the bhatta adversely affects the plaintiff's grove and causes damage to its trees and fruits. The smoke has also an adverse effect on the health of the plaintiff and the other members of his family. The defendant was asked to remove the bhatta to a place sufficiently away from the plaintiff's house and grove. He did not comply with the request. The plaintiff, there-fore, sued to recover Rs. 2000 as damages and claimed a mandatory injunction directing the defendant to run his bhatta at a distance of at least 500 yards from the grove and the house of the plaintiff.

(3.) The suit was contested by the defendant who pleaded that the bhatta had no adverse effect on the plaintiff's grove and was not injurious to the health of the plaintiff and the members of his family in any way. The plaintiff had not suffered any loss of any kind. He also pleaded that the suit was barred by estoppel and acquiescence and that the plaintiff was not entitled to the injunction claimed. He alleged that the suit had been filed on account of enmity.