DEWAN CHAND Vs. MADAN MOHAN & ORS.

JUDGEMENT

(1.) This is the plaintiff's appeal arising out of a suit for permanent injunction to restrain the defendants from interfering with the flow of water from the plaintiff's house to the defendants' land which is styled as "bari" in the plaint. The suit was tried by a Munsiff and was dismissed. On appeal to the District Judge it was decreed and the injunction sought was granted. From that judgment the defendants preferred an appeal to the High Court. During the course of arguments in the High Court the parties suggested that the inspection of locality by the District Judge was not very helpful and the services of an engineer may be employed for obtaining the levels of the land and finding out the exact height of the places in dispute. This found favour with the Court.

(2.) The appeal was allowed and the case was remanded with the direction that the learned District Judge would inspect the locality with the assistance of an engineer, who was to make a proper survey and then dispose of the case. The learned District Judge represented that he had already formed an opinion and would not like to go over the case again. On this the case was taken over on the file of the High Court but the District Judge was asked to make his report after inspection. The District Judge inspected the locality with the assistance of an engineer and submitted a report. This, however, was not a proper report as he only forwarded the engineer's report and did not formulate his own inspection note. This was considered to be insufficient and the case was remanded again to the District Judge (another incumbent) to furnish a proper report. This report is now before us. This appeal will be considered as first appeal from the decision of the learned Munsiff.

(3.) It is now an admitted fact that the level of the plaintiff's house is higher than that of the defendants' land. It must also be taken to be conceded that at least for the last 10 or 12 years (the plaintiff's evidence puts it at 40 years) the water from the plaintiff's house used to flow in a westernly direction and take its course towards the defendants' bari. These two factors emerge both from the evidence led on behalf of the parties in the case as well as from the report which is now submitted by the learned District Judge on inspection made of the locality along with the engineer.