AGYA RAM Vs. MANOHAR LAL

JUDGEMENT

(1.) The appellant is the plaintiff, who aggrieved by the judgments and decrees concurrently passed by both the learned Courts below, has filed the instant appeal. The parties shall be referred to as the 'plaintiff' and the 'defendant'

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit stating that he is owner in possession of the suit land bearing Khaa No.123, Khatauni No. 199, Khasra Nos. 1329/667, measuring 0-04-16 hectares situated at Mohal Thirdi, Mauza Nerti, Tehsil Shahpur, District Kangra, H.P. (hereinafter referred to as the 'suit land'). It was averred that the defendant was owner of adjoining land which was situated in upper side of the suit land. However, the defendant was having no right, title or interest in the suit land, but defendant started interfering in the suit land by diverting the flow of waste water from his residential house, kitchen, toilet and bathroom etc. towards the suit land. In September, 2012, the defendant started constructing drain in his land in such a manner to divert the flow of waste water towards the land of the plaintiff. It was averred that the plaintiff requested the defendant not to make such construction, upon which the defendant assured that he would construct a sock pit in his land in order to avoid the flow of waste water towards the land of the plaintiff. But the defendant did not keep his words and diverted the flow of waste water towards the suit land. Hence, the plaintiff filed the suit for permanent prohibitory injunction restraining the defendant from diverting his waste water towards the suit land and prayed for the relief of mandatory injunction directing the defendant to restore the suit land to its original position by demolishing the structure or drain.

(3.) The defendant contested the suit by filing the written statement wherein preliminary objections qua maintainability, cause of action, estoppel, limitation, valuation and non-joinder of necessary parties, were raised. On merits, it was not disputed that the plaintiff was owner in possession of the suit land. However, it was stated that between the land of both the parties, there is land of third party. It was denied that the defendant had diverted the flow of dirty water towards the land of the plaintiff by constructing any drain. It was averred that there was a pucca drain constructed by Panchayat through which the waste water was flowing. The defendant constructed a septic tank, sock pit etc. There was a PWD street adjacent to the land of the plaintiff and the plaintiff had occupied some land of that street. This demarcation of the plaintiff was found when demarcation was obtained by PWD in January, 2013. Lastly, the defendant prayed for dismissal of the suit.