NIRMAL SINGH Vs. SOHAN SINGH

JUDGEMENT

(1.) CHALLENGE in this regular second appeal is to the judgment and decree dated 12.3.2014 passed by Sh. Arun Gupta, Additional District Judge, SBS Nagar vide which the appeal preferred by the plaintiff against the judgment and decree dated 27.11.2012 passed by Ms. Amandeep Kamboj, Civil Judge (Junior Division) Nawanshahar was accepted and the suit of the plaintiff for mandatory injunction and permanent injunction was decreed.

(2.) BRIEFLY stated, the plaintiff -respondent No.1 filed suit for mandatory injunction and permanent injunction on the averments that the defendants are his near relations. The plaintiff further pleaded that he is residing in the property shown in blue colour in the site plan and on the northern side of his house, there is a joint passage/street which is ancestral and is common among the plaintiff and all the defendants and is shown in brown colour in the site plan. Across this street on the northern, eastern and northern western corner of the street are the residential properties of the defendants as shown in the site plan. Plaintiff has alleged that with the consent of the parties and their predecessors in interest, the gram panchayat of village Mangat Dingaria (which was common panchayat of both villages, namely, Mangat and Dingarian earlier), laid brick flooring on this passage by keeping drains on both sides, for the discharge of water and waste water of the properties of the litigating parties. Plaintiff further stated that about 6 months ago, an NRI society, namely, Village Life Improvement Foundation, by their own contribution coupled with grant by the Deputy Commissioner, Nawanshahr, laid a sewerage system in the village for the welfare of the villagers and under that scheme a sewerage system had been laid underground this passage as well, which takes the waste water of the properties of the parties and discharges into the main sewage disposal system as depicted in the site plan, whereafter this passage was laid with concrete cement slabs by the said Village Life Improvement Foundation. Plaintiff has alleged that the daily waste water from his residence was discharged through underground system, as shown in red colour in the map, connecting the system with the main haudi shown in yellow colour and then into the main sewage system ultimately falling into a pond out side of village and further disposal thereof. Plaintiff has alleged that the defendants in connivance amongst themselves, in order to cause harm and damage to the plaintiff, obstructed the discharge of daily waste water from the house of the plaintiff through the existing underground sewerage connecting pipe shown at site in red colour in the map by threatening to damage the same, so the plaintiff filed the suit for permanent injunction. However, during the course of proceedings before the trial Court, plaintiff alleged that the defendants damaged and blocked the same after breaking the existing pipe and the defendants have filled the same with cement and concrete mixture which is apparently distinguishable from the rest of the flooring of passage, being recently laid. The part of sewerage plastic pipe is still in existence in the haudi of the plaintiff and the northern wall of the plaintiff. Aggrieved, the plaintiff, with permission of trial court, filed amended plaint.

(3.) ON notice, defendants filed the written statement taking preliminary objections that the plaintiff has approached the Court with soiled hands, as such is not entitled to the discretionary relief of injunction, plaintiff has got no locus standi, suit was not maintainable and plaintiff was barred by his act and conduct to file the suit. On merits, existence of joint passage/street of parties was denied. It was further denied that the said street was left by fore -fathers of the parties for common use of their successors -ininterest. The location of the properties of the defendants on the remaining sides of the said street, as alleged by the plaintiff, was admitted. However, it was pleaded that the said street was left for common use of the defendants alone out of their respective share of property and plaintiff has no concern with the same. It was further pleaded that the street was brick paved by the defendants out of their own pocket unlike the averments made by the plaintiff that it was brick laid by the said NRI society. From the pleadings of the parties, following issues were framed: -