SMT. DHARMO DEVI Vs. RADHAY SHYAM

JUDGEMENT

(1.) The present appeal has been filed by the unsuccessful plaintiff whose suit for permanent injunction has been dismissed by both the Courts below. The suit was for permanent injunction restraining the defendant to fill the open Nali shown in blue colour in the site plan or to block the water of the underground pipe or to remove the pipe shown in red colour in the site plan in any manner. The case of the plaintiff was that she was owner in possession of a residential house shown in green colour and the defendant was owner in possession of house shown in yellow colour in the site plan and 2-1/2" underground pipe had been installed by the plaintiff for letting out the rainy water of the house and the said pipe was installed at a depth of about 3 feet. It is alleged that area in front of the defendant is an open drain shown in blue colour and plaintiff installed the underground channel only to avoid damage to the foundation of the house of the plaintiff and defendant was a quarrelsome person. The defendant was alleged to have started blocking the open nali shown in the blue colour due to which rainy water could not pass. The plaintiff requested the defendant many times to connect another pipe of same diameter from point D to his boundary walls for the drainage of the water but the defendant was adamant to block the open nali and also to remove the underground pipe installed by the plaintiff.

(2.) The suit was contested by the defendant on various grounds including maintainability, estoppel and non joinder of necessary parties. It was replied that the open drain passed in front of the house of the defendant and other villagers had been constructed by the Gram Panchayat for discharge of rainy and household water and the plaintiff had damaged the said open drain in front of her house and installed 2-1/2" pipe which was grossly insufficient to pass rainy water and waste water. The said pipe got blocked, due to which the water was not discharged and got collected in front of the house of the defendant creating multifarious health and hygiene problem. Accordingly, it was pleaded that plaintiff had no right to damage the drain in front of the house of the defendant and laying of the pipe and constructing drain was the job of the Gram Panchayat and the plaintiff had no right to obstruct the discharge of water. It was pleaded that if the plaintiff wanted to lay any pipe in front of her house, the same should have been done in consultation with the Gram Panchayat and of proper specification so that it would not obstruct the free flow of water through the drain at the other ends. Accordingly, it was prayed that the suit be dismissed. The defendant also filed a counter claim and alleged that he was owner in possession of the house shown in yellow colour in the site plan and plaintiff had damaged the open drain constructed by the Gram Panchayat in front of his house and laid 2-1/2" pipe which was not sufficient for the drainage of the water. Therefore, it was prayed that mandatory injunction be granted directing the plaintiff to restore the said nali in its original condition.

(3.) On the basis of the pleadings of the parties, the trial Court framed the following issues:-