KRISHNA KASHINATH MALI Vs. HARISHCHANDRA GANPAT MALI

JUDGEMENT

(1.) THE original Plaintiff and Defendants No. 1 and 2 who are 'bhaubands' and reside in the proximity of each other got involved in a dispute with regard to the drainage of waste water flowing out from the Vastis of Defendant Nos. 1 and 2. The Plaintiff who had instituted Regular Civil Suit No. 118 of 1972, claimed ownership of the court yard in front of his house through which the water in question was being drained and contended that the defendants be permanently restrained from allowing the water to flow through that piece of land. The Plaintiff had also sought a declaration that the title to the open piece of land vests in him. The open site measures approximately by 42 Ft. x 20 Ft. and there is also a cattle shed admeasuring 27 Ft. x 18 Ft. to the southern portion of the open site. We are not immediately concerned with the cattle-shed which admittedly belongs to the plaintiff. The learned trial Judge dismissed the suit holding that the plaintiff was dis-entitled to any reliefs the matter was carried in appeal and the learned District Judge, Alibae decreed the suit in favour of the plaintiff by holding that the title is respect of the plot of land vests in the plaintiffs and that consequently, the defendants are liable to be injuncted from draining any water through that piece of land It is material for me to mention that the defendants had originally pleaded that it is incorrect to hold that the Court-yard which abuts the house of the plaintiffs belongs to them exclusively. They contended that there is a public lane on one side of that land and that the drain through which the water flows abuts the public lane and to this extent' therefore, the plaintiffs are not entitled to claim ownership over that particular strip of, land nor are they entitled to object to the drainage of the water through the side of that strip. The Appeal Court has come to the conclusion that there is no evidence in support of the theory that a public lane existed and that consequently the defendants' plea must necessarily fail. I need to also mention that the defandants had tried at one stage to contend that the court-yard in question does not belong to the plaintiffs at all and that they have no right whatsoever with regard to the same. That aspect has been negatived for very good reason and the plea has not seriously been canvassed before me at the hearing of this appeal.

(2.) THE present appeal is directed against the appellate order and the limited submission canvassed by Mr. Palekar, on behalf of the appellant is that no documentary evidence or no satisfactory records of any type have come before the Court in support of the plea that the court yard in question belongs to the Plaintiff, This area comes under the Grampanchayat and in a dispute of the present type, to my mind, Mr. Palekar is to some extent justified when he contends that the party claiming title in respect of a particular plot of land should establish it through some records other than oral evidence before claiming the title to that piece of land. I need to however record that the plea in respect of declaration of title is only a subsidiary one, the main relief being in respect of an in-junction restraining the defendants from sending the waste water through that piece of land A careful perusal of the appellate judgment will indicate that after considering the material before him and examining the position in law, the learned appellate Judge has come to the conclusion that the plaintiffs are in possession of the open plot of land which immediately abuts their residence. To this extent, it will have to be held that at least, the possessory title in respect of that plot of land vests in the plaintiffs. Some modification with regard to the decree is therefore necessary.

(3.) LEARNED Counsel appearing on behalf of the respondents-original plaintiffs, points out to me that the Grampanchayat is the only authority that can conclusively throw light on the correctness or otherwise of the plea that a narrow public lane abuts and adjoins the open piece of land. It is his contention, that the defendants had raised this plea and therefore it was upto them to have established it and not having done so since the plaintiffs have at least established their possession in respect of that piece of land, that the defendants cannot be permitted to drain out waste water through that particular piece of land. Admittedly, no records have been produced nor has the Grampanchayat been made a party to this dispute. To my mind, both the parties are equally to blame for this state of affair because if the plaintiffs desire to establish their title, in respect of that piece of land, they ought to have either produced the record from the grampanchayat or made the Grampanchayat a party to the suit. The same position emerges as for as the defendants are concerned because they are pleading that the public lane existed and whether this is true or not could only have been established through the evidence of a representative of the grampanchayat or by producing some records from the Grampanchayat. Having regard to this situation, to my mind, the decree passed by the Appeal court will have to be modified to the extent of holding that the plaintiffs are entitled to a declaration that the plot of land is in their possession. This will however, be subject to the determination bv the Grampanchayat of the question as to whether or not a public lane does exist on the strip of that land as claimed by the defendants. For this purpose, the injunction order that is at present in favour of the appellants shall be continued for a period of three months only. In the meanwhile the Grampanchayat shall investigate into the matter, and ascertain as to whether a public lane does infact exist at that spot if the answer is in the affirmative, it shall be open to the defendants to apply for necessary permission to the Grampanchayat for construction of a narrow drain in order to drain out the waste water in such a manner as not to cause obstruction or interference with the plaintiffs use and occupation of the court-yard.