ACHUT KALSAI AND ANR. Vs. MADHU KALSAI

JUDGEMENT

(1.) THE Defendants are in appeal against the affirming decision of the learned Subordinate Judge, Bolangir in a suit for mandatory injunction brought by the Plaintiff -Respondent for a direction to the Defendants to remove the obstruction to the flow of water from the Plaintiff's premises to the village lane. He also prayed for restraining the Defendants from putting any further obstruction to such flow of water. He claimed damages of Rs. 200/ -.

(2.) ADMITTEDLY the Plaintiff and the Defendants are near relations. The Plaintiff alleged that plot Nos. 770 and 771 fell to his share in an amicable partition. From the homestead on the aforesaid plots the accumulated water was being discharged through an outlet over a neighbouring plot to the road -side channel in plot No. 108. On 20 -7 -1965, the Defendants who are the immediate neighbours blocked the passage by putting big stones and thereby caused obstruction to the flow of water from the Plaintiff's premises into the channel by the road side. The Plaintiff wanted removal of the obstruction and an injunction restraining the Defendants from interfering in future with the flow of water from his premises. He also claimed recovery of damages of Rs. 200/ -.

(3.) BOTH the Courts below have concurrently found on the evidence on record that the Plaintiff had been discharging the water from his premises into the channel by the side of the village road in plot No. 108 and was utilising the vacant Government land lying close to his residential plot which intervened the Plaintiff's land on one side and the channel by the side of the village road on the other. While upholding the Plaintiff's claim for the mandatory as also permanent injunction they have negatived any relief of damages to the Plaintiff. It is against the affirming decree of the lower Appellate Court that the present Second appeal has been carried to this Court by the Defendants.