GANGA VISHNU SWAIKA Vs. MACHINE MANUFACTURING CO LTD

JUDGEMENT

(1.) This is an appeal against a decision of the District Judge, Howrah, reversing the decree of the Munsif, First Court, Howrah.

(2.) The appellant filed a suit for a declaration that a particular drain is a public drain and he has a right to discharge water from his land through the said drain. The drain in question was comprised in dags Nos. 2512 and 2514 of mouza Belur. The plaintiff's case was that the same was a public drain of the locality and the plaintiff has an unobstructed and indefeasible right to discharge the surplus water of his factory into the same. The plaintiff had also a factory on his own land immediately to the north of the said dags and has got a pucca drain in his land through which he had been discharging the surplus water of his factory into the said public drain. The said dags being dags Nos. 2512 and 2514 along with other lands came to be acquired by the Government under Chap. VII of the Land Acquisition Act, for the purpose of making it over to the defendants for the use of their factory therein. After the Government had acquired the said land it entered into a contract with the respondents and in pursuance of the said contract made over the lands in question to the respondents. The respondents thereafter obstructed the said public drain and the present suit was instituted by the appellant in respect of the said obstruction. It would be necessary at this stage to refer to the plaint in order to understand the nature of the case with which the plaintiff came to Court. The plaintiff in para. 12 of his plaint states that the defendant 2 (respondent 2 before us) who is an influential member of the Union Board and is the Managing Director of the defendant company is going to enclose the public drain within his compound wall and obstruct the plaintiff's drain which the defendants have absolutely no right to do. Then in para. 14 of the plaint it is stated that the defendants have no right to close the public drain of the locality although they claim to have acquired in the absence or interested parties the sub-soil of the Dags 2512 and 2514, thereby closing plaintiff's factory and creating an unbearable nuisance in the locality inasmuch as the huge quantity of black putrid water of the Bally Municipality will collect in the locality causing an unbearable nuisance and as such the plaintiff is entitled to a declaration and injunction as prayed for. In the prayer portion of the plaint the plaintiff claimed declaration that Dags 2512 and 2514 constitute public drain of the locality carrying the water of the Bally Municipality and for a drain that the defendants be restrained permanently from filling up or closing the said drain. There were also prayers for a temporary injunction and for mandatory injunction directing demolition and removal of the structure or obstruction, if any, from the said public drain. In the written statement filed by the defendant it was stated that although the drain in question was an old drain, it was a village drain and that the disputed drain became the absolute property of the defendants free from all incumbrances and claims and the question of injury to the plain tiff was irrelevant.

(3.) Upon these pleadings the parties went to trial. Issues were framed to which it is not necessary for us to refer in detail. It would be sufficient to say for the present purpose that there was no issue regarding the nuisance which has been caused to the plaintiff individually for such obstruction.