JARAM SINGH Vs. NARAD AND ORS.

JUDGEMENT

(1.) THIS petition, under Article 227 of the Constitution of India read with section 151 CPC has been preferred by the plaintiff -petitioner for setting aside the order passed by learned District Judge, Chamba on 25.7.2013 in Application No. 7 of 2012, whereby he affirmed the order passed by learned Civil Judge (Sr. Division), Chamba in Civil Misc. Appl. No. 44/12 on 23.11.2012.

(2.) THE facts, as necessary for determination of the present case, are that plaintiff -petitioner filed a suit for permanent prohibitory injunction as well as mandatory injunction restraining the respondents -defendants from raising construction of toilet and bath room over the dry -pit constructed by them on the land comprised in khewat khatoni No. 55/69, khasra No. 281 abutting to the house and kitchen of the plaintiff - petitioner constructed over the land comprised in khewat khatoni No. 22/24, khasra No. 282, measuring 00 -06 -00 Bighas situated in Mauza Sohi, Pargana Kohal, Tehsil Churah, District Chamba and from using the pit as a septic tank for discharge of sewer, waste and filthy water of their toilet and latrine as the same would cause damage and create nuisance to the property of plaintiff and a prayer was made that respondents be restrained from constructing the toilet and latrine over the pit and the respondents be further restrained from discharging any dirty and filthy water. Alongwith the suit, an application under Order 39, Rules 1 & 2 CPC with the same prayers as in the main suit was also preferred.

(3.) DURING the pendency of the suit, a Local Commissioner was appointed to find out the distance between the pit dug by the respondents with the kitchen of the plaintiff. The Local Commissioner Sh. Parveen Chauhan in his report reported that there is 4" -7" distance between the pit and kitchen and the house of the petitioner. Admittedly, this report has not been challenged by either of the parties and the same in fact falsifies the version of the petitioner that pit is abutting the kitchen of the petitioner. It is further not in dispute that respondents have dug the pit in their own land over khasra No. 281.