CAETANO REMEDIOS DOURADO SON OF JOAQUIM DOURADO Vs. DIGAMBAR A NAIK SON OF ATMA NAIK, NALINI DIGAMBAR NAIK WIFE OF SHRI DIGAMBAR A NAIK

JUDGEMENT

(1.) This appeal is preferred by the plaintiff, whose application for temporary injunction came to be rejected.

(2.) The facts giving rise to this appeal, are as follows: The plaintiffs and the defendants are the immediate neighbours. The house of the defendants, lies to the east of the plaintiffs' house. The house of the plaintiffs' bears No. 38/A and 2619 whereas that of the defendants, bears No. 38/B. There is a common wall in between these two houses. The total area of the house of the defendants, is 50 square metres. The defendants purchased the said house under a mundkarial right from the erstwhile owner. The said house was made of mud as well as laterite stone. The house had Manglore tiles' roof and it was sloping towards the south. The wall between the house of the plaintiffs and the defendants, is a common wall. It is the contention of the plaintiffs that their plot has a slope towards the east and southern portion of the plots of the plaintiffs and defendants, is at a more height as compared to northern portion. It is the contention of the plaintiffs that waste water as well as rain water from their plot used to flow from their plot into that of the defendants. It is their contention that to the south of the defendants' house, there is a drainage and the water from plaintiffs' plot, used to be discharged in that drainage. The said drainage was running from west to east and then from south to north. Further contention of the plaintiffs is that the defendants have demolished their old house and intend to construct a new house. While doing so, the defendants have blocked both the drainages. The plaintiffs made complaint of the same to the Municipal Council. The Municipal Council directed the defendants to remove blocks in the drainage, which lies to the east of the defendants' plot, but did not give directions with regard to the southern drainage. The plaintiffs submit that their right to discharge the water, is thus affected. Further it is the contention of the plaintiffs that since the defendants have pulled down their house, the eastern wall of the plaintiffs' house, is now exposed to rains. They contend that the defendants are bound to construct that wall and protect it from vagaries of nature. The plaintiffs, therefore, sought a temporary injunction from restraining the defendants from blocking the drainage and directing the defendants to repair the walls.

(3.) The defendants had resisted the temporary injunction application by filing reply to the said application. The defendants contend that they are making construction of their house after obtaining necessary permissions from the Municipal Council. None of their work, is illegal and against the approved plan. The defendants deny that the water from the plaintiffs' house was ever being discharged on the plot of the defendants. The defendants deny the existence of a drainage to the south of their house. It is their contention that since there was no drainage in existence at south, there is no question of plaintiffs having right to discharge water. Further it is the contention of the defendants that the plaintiffs have constructed a new bungalow at their own plot, which is house No. 2619. Due to the construction of the said plot, the plaintiffs themselves have blocked the natural flow of the water from their plot to the northern side where there is a nullah. It is their contention that water from the plaintiffs' plot, used to flow from south to north from their own plot into the nallah, which lies to the north of the plot. The defendants also prayed for an injunction restraining the plaintiffs from diverting the rain water on the defendants' property from the southern side.