GOVARDHAN DHAR Vs. NARESH KUMAR SHARMA & ANR

JUDGEMENT

(1.) This is defendant's second appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiff-respondents has been partly decreed to the extent that the defendant-appellant has been directed to remove the generator which has been installed in the street falling in between the houses of the plaintiffs and defendant as shown in the site plan.

(2.) As per the pleadings, the plaintiff-respondents averred in the suit that they were owners of one house bearing New Municipal No.634/13 falling in Ward No.13, Court Road, Patti as detailed in the head note of the plaint which was purchased by them from one Smt. Balbir Kaur vide registered sale deed dated 25.8.1994 and the defendant-appellant has effected encroachment in the said street situated on eastern side of their house and has constructed latrine, water tank and projection as shown in the site plan in red colour attached with the plaint. They had filed a counter claim for removal of said encroachment in civil suit titled as Govardhan Dhar vs. Naresh Kumar pending in the court of Sh. A.S. Virk, the then Civil Judge, (Jr. Division) Patti. It was alleged in the suit that on 8.9.2001, the appellant had installed one electric generator operated by 10 H.P. engine at point Q as shown in the site plan in the street in dispute due to which lot of vibrations were coming in the windows, doors and ventilators of the house of the plaintiffs. Even number of glasses were broken due to operation and noise of said generator. It was further alleged that it has become impossible for the children of plaintiffs to study due to noise of generator. Even it is emitting a lot of smoke causing pollution in the air which again cause nuisance to the plaintiffs. Despite asking, the defendant-appellant has failed to remove the said generator. Hence, necessity arose to file the present suit.

(3.) Upon service, the defendant-appellant appeared and filed written statement raising various preliminary objections. On merits, it was denied that the plaintiffs were the owners of the house as depicted in the head note of the suit. It was further denied that the defendant effected encroachment in the street situated at the eastern side of the house of the plaintiffs. Pendency of the suit titled as Govardhan Dhar vs. Naresh Kumar was admitted. It was further submitted that the defendant-appellant had purchased the house bearing No.297/12 from Kharaiti Lal on 28.2.1994 and another house from Om Parkash vide registered sale deed dated 28.2.1994. It was further submitted that water tank on the Northern side of the courtyard being used as lane was also purchased from vendor by the defendant. It was admitted that electric generator had been installed by him however, it was denied that it was creating lot of vibrations etc. and causing nuisance to the plaintiffs. It was submitted that the said street was closed on the northern side of the house of defendant and there was land of railway department as shown in the site plan filed along with written statement. It was submitted that silencer of the electric generator was fixed towards the land belonging to railway department, hence there is no trouble to the plaintiffs by operation of the said generator. It was also alleged that in fact the plaintiffs have also filed the present suit being the counter blast of criminal complaint filed against them by the defendant. All other averments contained in the plaint were denied and dismissal of the suit was prayed for.