LONGU RAM AND ORS. Vs. KRISHAN KUMAR

JUDGEMENT

(1.) The instant Regular Second Appeal has arisen against the impugned judgment and decree of the learned District Judge, Hamirpur rendered in Civil Appeal No. 66 of 2005, whereby the latter while reversing the judgment and decree of the learned trial Court allowed the appeal of the plaintiff/respondent herein (hereinafter referred to as the 'plaintiff') and decreed the suit.

(2.) Briefly stated, the facts of the case are that the plaintiff has fled the suit for permanent prohibitory perpetual injunction restraining the defendants from changing the nature and diverting and throwing the dirty water from bathroom, latrine and kitchen in the land comprised in Khata No. 117 min, Khatauni No. 126 min, Khasra No. 435, measuring 0 -15 marlas, situated in village Karer, Mauza Pahlu, Tehsil Barsar, District Hamirpur, H.P. The case of the plaintiff/respondent herein is that he is owner in possession of the suit land. The suit land is situated at a lower level than the land owned by the defendants which is at a higher level and the defendants have constructed their bathroom, latrine and kitchen and have diverted the flow of dirty water with the foul smell to the land of the plaintiff. The plaintiff objected and the defendants undertook to control their dirty water in their own land by digging a pit sufficient to observe the dirty water. The plaintiff requested the defendants time and against but all in vain. Hence, the present suit.

(3.) The defendants contested the suit and fled the written statement, wherein preliminary objections have been raised qua maintainability, cause of action, estopple, non -joinder and mis -joinder of necessary parties. On merits, it is averred that the suit land is situated at a lower level and land of the defendant is situated at a higher level. The water is flowing since 1976 -77 and the matter was raised before the Gram Panchayat and was compromised. The plaintiff has fled the present suit just to harass the defendants being unnecessary litigation.