SAROJ Vs. INDERCHAND NAHTA

JUDGEMENT

(1.) This civil revision under Section 115 of the Code of Civil Procedure, 1908 has been preferred challenging the legality, propriety and correctness of order dated 02.09.2013 passed by First Civil Judge Class-I, Balaghat in civil suit No. 61-A/2013, whereby the learned Court below has rejected the application filed by the revision petitioner/defendant under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of plaint on the ground that the drain in question has not been adequately described in the plaint and mandatory provision of Order 7 Rule 3 of the Code of Civil Procedure has not been complied with.

(2.) The facts giving rise to this civil revision may briefly be stated thus: The respondent/plaintiff had purchase his house by registered sale deed on 29.07.1978 and has been in possession thereof as owner, ever since. The revision petitioner/defendant has purchased the plot of land to south adjacent to plaintiff's plot, by a registered sale deed on 04.07.2006. There is a common, public drain ("nali") located between the two plots of land. Waste water has been flowing uninterrupted through this drain for past many years. The petitioners/defendants have started construction on their plot and have constructed columns on both the sides of the drain. They have filled up this drain with garbage in order to encroach upon it. As a result, the drain has been obstructed and waste water is spilling onto the plaintiff's plot. It had been pleaded by the respondent that if the obstruction is not removed, the drain water would accumulate over the entire plot of the respondent, rendering it uninhabitable; therefore, it has been prayed that permanent mandatory injunction against the petitioners be issued directing them to remove encroachment made by them across and in the drain and keep it free from any obstruction. The evidence of the plaintiff/respondent has been recorded in the suit.

(3.) The petitioner/defendant filed an application under Order 7 Rule 11 of the Code of Civil Procedure submitting that the respondent/plaintiff has not filed any authorized map drawn to scale, of the alleged encroachment along with the plaint. The plaintiff has also not filed any demarcation report prepared by the authorities. He has also not filed any map or positive evidence to demonstrate as to exactly on which portion of land of which survey number, have the defendants encroached upon. As such, the plaintiff has not complied with the mandatory provision of Rule 3 of Order 7; therefore, plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure.