MOHD SHAFI Vs. AB RASHID

JUDGEMENT

(1.) THIS appeal is directed against the order of reversal to have been passed by the learned District Judge Udhampur on 31.7.1990,. whereby the judgment and decree passed by the trial court of Sub Judge, Udhampur, on 24.9.1984, has been set a side and the suit of the appellant Mohammad Shafi (Plaintiff hereinafter) has been dismissed.

(2.) THE brief facts of the case which have given rise to this civil second appeal are that the Plaintiff Mohammad Shafi filed a suit in the court of Sub Judge Udhampur alleging therein that the roof water of his house used to be drained out from the back side of his house and the same was passing through a drain existing in the land of respondent (Defendant hereinafter) and the said water finally ended in a Shamilat land for more than sixty years. The defendant by raising a kitchen wall on his land for the last about one and half years, obstructed the flow of the Plaintiffs roof water passing through a drain in his land and that occasioned a damage to the wall and a part of the Plaintiffs house. Therefore relief was sought for issuance of a permanent injunction restraining the defendant from obstructing the flow of the water through his land and a mandatory injunction asking him to remove the wall of the kitchen.

(3.) IN this regard written statement was filed by the Defendant, in which it was asserted that he has constructed his house in the year 1948, whereas the Plaintiff built his house in the year 1960. The roof water of the Plaintiffs house used to flow towards the backward of his house by way of natural course, as the Plaintiff raised the level of his land by filling and therefore changed the course of his roof water in the year 1975. Further two rooms were built up by the Plaintiff in 1976 on a raised level of his land which obstructed the natural flow of the water. It was denied that roof water of the Plaintiffs house was ever drained out into the land of the defendant, which was at all obstructed by construction of a kitchen. It was further submitted that some application was moved before the Panchayati Adalat Rehmabal, who visited the spot and advised the Plaintiff to manage the outlet of his roof water through his own land.