DR. RADHEYSHYAM CHIPPI Vs. OM PRAKASH SONI

JUDGEMENT

(1.) Both the second appeals arise out of the common judgment and decree dated 23.08.2007 passed by the Additional District Judge, Behror, Camp Bansur, District Alwar (hereinafter referred to as "the appellate court ") in Civil Appeals No.34/2006 & 43/2006, whereby the appellate court has dismissed the appeal filed by the appellant-plaintiff and partly allowed the appeal of the respondent-defendant filed against the judgment and decree dated 26.05.2006 passed by the Civil Judge (Jr. Division) Bansur, Alwar (hereinafter referred to as "the trial court ") in Civil Suit No.34/11/03.

(2.) In the instant case, it appears that the appellant-plaintiff had filed the suit seeking permanent prohibitory and mandatory injunction against the respondent-defendant, alleging inter alia that the appellant-plaintiff was the owner of the plot No.16 and the respondent-defendant was the owner of plot No.15 situated in Shastri Colony Bansur. As per the case of the appellant, the respondent by digging soil on the backside of his plot No.15 was allowing the accumulation of water and thereby creating nuisance and damage to the appellant's property, and further creating health hazard to the appellant, who was running a small nursing home, and had also a residential unit over the said plot No.16. It was also the case of the appellant that the Gram Panchyat Bansur had directed the respondent-defendant to drain out the waste water from his plot No.15 towards the road side, vide the order dated 06.09.2002. The said order was challenged by the respondent by way of appeal which was dismissed, against which revision was preferred before the Additional Collector and the said revision was also dismissed. According to the appellant, the writ petition filed by the respondent against the said order of Additional Collector was also dismissed and the Special Appeal (DB) against the order passed in the writ petition was also dismissed. Though, the various authorities had passed the orders against the respondent, the respondent continued to create nuisance, and therefore the suit was filed by the appellant. The said suit was resisted by the respondent-defendant by filing the written statement, denying the allegations, and further contending inter alia that the appellant-plaintiff himself had obstructed the flow of water by constructing a wall in between their plots and had also raised the level of the ground on the backside of his plot, as a result of which the easementary right of the respondent for draining out the water from his plot was obstructed. The respondent-defendant had also made a counter claim seeking direction against the appellant-plaintiff to remove the wall and also for restoring the original level of the plot.

(3.) The trial court after appreciating the evidence on record dismissed the suit of the appellant-plaintiff as well as the counter claim of the respondent-defendant vide the judgment and decree dated 26.05.2006, against which the appellant and the respondent had preferred their respective appeals. The appellate court partly allowed the appeal filed by the respondent and dismissed the appeal filed by the appellant vide the impugned judgment and decree.