PREM SINGH Vs. NAROTAM SINGH

JUDGEMENT

(1.) The present regular second appeal has been maintained by the appellant/plaintiff (hereinafter referred to as 'the plaintiff') against the judgment dated 16.12.2005 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, H.P. in Civil Appeal No. 65-N/04/01, whereby the judgment, dated 31.05.2001, of the learned Sub Judge 1st Class, Nurpur, District Kangra, H.P., passed in Civil Suit No. 312 of 1997, was set aside.

(2.) Brief facts of the case, as per the plaintiff, are that the plaintiff maintained a suit for permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as 'the defendants'). The plaintiff averred in the plaint that he is owner-in-possession of a residential house situated in Khasra No.505, Mohal and Mauza Dainkwan, Tehsil Nurpur, District Kangra (hereinafter referred to as 'the suit land'). He has further averred that he and his family members reside in the above house. The defendants are also having their residential house in the same area, which is situated in nearby Khasra No. 502 and the distance between their houses is only 20 meters. The defendants are cultivating/growing mushrooms in their courtyard and for this cultivation they use mixture of water, wheat husk and chicken manure. This said mixture is fermented for a month and thereafter mushroom seeds are sown in the said mixture. As per the plaintiff, the mixture of water, wheat and chicken manure emits foul smell causing unhygienic conditions. The plaintiff has further averred that due to the foul smell it is very difficult to reside in the house. This cultivation of mushrooms is being carried out by the defendants from Sept. to Dec. and from Jan. to March every year and due to this cultivation the plaintiff and his family members face difficulty to breath, eat and sleep with comfort. As per the plaintiff, it is impossible to reside in his residence and cultivation of mushrooms causes continuous nuisance to him. Despite repeated requests, the defendants are not desisting from their acts, thus the plaintiff was compelled to maintain the suit.

(3.) The defendants, by way of filing written statement, resisted the suit of the plaintiff. The defendants raised the preliminary objection of maintainability and estoppel. On merits, the defendants contended that the house of the plaintiff is at a distance of 40 meters from their house. As per the defendants, they started the business of growing mushrooms in the year 1986-87 when the plaintiff was Pradhan of the Gram Panchayat, however, he never objected the same and due to enmity the suit is filed. The defendants have further contended that in 1995 the plaintiff initiated proceedings against them in the Gram Panchayat, which was dismissed, as the defendants produced a certificate of Assistant Scientist, Plant Pathologist, Dr. Y.S. Parmar, University of Horticulture and Forestry, Jachh, which revealed that the mushroom industry is not injurious for human beings and animals.