RUKMANI DEVI Vs. KAILASH CHAND

JUDGEMENT

(1.) The instant Regular Second Appeal stands directed against the impugned judgment and decree rendered on 24.8.2006 by the learned District Judge, Kinnaur Civil Division at Rampur Bushehar, camp at Reckongpeo, in Civil Appeal No. 36 of 2005 whereby it affirmed the judgment and decree of 25.8.2005 rendered in Civil Suit No. 63-1 of 2003 by the learned Civil Judge (Sr. Div) District Kinnaur at R/Peo, H.P.

(2.) The brief facts of the case are that plaintiff is owner of the land comprised in Khasra No. 98 & 99 measuring 0-01- 29 hectare situated in Mauza Kanam, Tehsil Pooh, District Kinnaur, H.P (for short ' the suit land'). The house and the bath room constructed on khasra No. 99 is about 24 years old and the dirty water of the bath room goes to the land of the defendant. That the land adjoining to the house of the plaintiff which is comprised in Khasra No. 117 measuring 0-07- 91 hectare situated in Mauza Kanam, Tehsil Pooh, District Kinnaur, H.P. owned by the defendant is being used by the plaintiff and prior to that by her father-in-law for throwing snow during the winter season for the last more than 24 years. On 11.9.2003 the defendant started digging the land where the plaintiff used to throw snow and to drain dirty water of her bathroom. The plaintiff requested the defendant not to do such acts, however the defendant threatened the plaintiff with dire consequences. The plaintiff and prior to that her father-in-law had been exercising the said right of throwing snow and draining dirty water on the land of the defendant for the last 24 years without any interference which right had ripened into right of easement by way of prescription and even otherwise the said rights are being used as an easement by way of necessity. The plaintiff prays that if the defendant is allowed to dig the land the plaintiff will not be in a position to discharge the water of bath room and throw the snow. During the pendency of the suit, the defendant constructed a cow-shed over the suit land. On the basis of the averments aforesaid, the plaintiff filed the present suit for perpetual injunction restraining the defendant from interfering into the possession of the plaintiff and also for mandatory injunction directing the defendant to remove cow-shed constructed on the suit land.

(3.) The defendant contested the suit and filed writtenstatement. In his written-statement he has denied that the plaintiff has been using his land comprised in khasra No. 117 for throwing snow during the winter season and for draining dirty water for the last more than 24 years. It has further been stated therein in the written-statement by the defendant that he has become owner in possession of khasra No. 117 in 1993 only when he purchased the said land from one Vidya Sain. It has further been stated that the house of the plaintiff is only a single storey structure having 2 rooms and there is no danger to it due to digging of the land. It is further submitted that if the plaintiff wants to throw snow or drain water, she must throw in her own land and not to the land of the defendant. It is further sated that the defendant has every right to make construction in his own land and the plaintiff cannot interfere. The defendant on the basis of averments aforesaid prayed for the dismissal of the suit.