SUBEDAR SINGH Vs. BAHADUR SINGH

JUDGEMENT

(1.) THIS petition has come before us against the orders passed by two Courts below. A suit is filed for permanent injunction, declaration of title and partition in the trial Court alleging that the defendant has obstructed the flow of Parnala of the house in possession of the plaintiff. The common case of the parties is that there had already been earlier a family partition and occasion for coming to this Court is on account of the fact that defendant had put an obstruction and blocked the passage of Parnala. A Commission was issued and the Commissioner's report supports the plaintiff's contention. Parties to the suit are in possession of their respective portions. But, the passage regarding flow of water is not separate.

(2.) THE Commissioner found that rubbish was present at the place of Parnala. There was a Kachcha Pakhana which is surrounded by two walls and there is no passage. There is a passage (Rasta) towards West and the Parnala was blocked. It is rainy season and if the flow of water is obstructed, it is clear that it will damage the houses and no body should be permitted to block the flow of Parnala. The trial Court in the circumstances was justified in granting injunction that defendant should remove the obstruction regarding passage and flow of water. As there has been a partition of the ancestral house the question whether any easementary right is accrued will be the question to be decided by the trial Court. But, the fact remains that the passage has been obstructed, therefore, we do not find any justification at this stage to interfere with the lower Court's order under Article 227 of the Constitution. However, it would be proper for the trial Court to decide the whole suit within a period of six months from the date of appearance of parties in that Court as herein below fixed. If necessary, the trial Court shall proceed with the trial of the suit day to day and decide the suit without being influenced by the order of injunction passed.