ABDUL GANI Vs. SADURAM

JUDGEMENT

(1.) THE facts of this case are that inside Sojati Gate, Jodhpur, Tej-dan and Chain Singh had lands in a big Nohara out of which 25-30 plots were carved out and sold by them. On 18-6-1952 the defendant Pannalal since then dead, purchased a plot from the said Tejdan and Chainsingh One of the conditions of the purchase was that Panna Lal shall not open any window, opening; Jali, balcony, Toda, Chhajja, Nali or Nal towards south of the plot so purchased. Another piece of land was purchased by one Champa Lal Darji on 15-6-57. Yet another plot was purchased by plaintiff Abdul Gani on 21-6-57 In between the plots so sold by Tejdan and Chain Singh there is a 'gali' 27' 8* in length and 3' in width. Since then it appears that house have been raised on the plots. THE plaintiff Abdul Gani complains that the defendant has opened on 30-10-1959 a spout in his house which discharges filthy water and urine in the said 'gali' passing on the 'kawali' of the latrine of the plaintiff which is also in the said 'gali'. THE plaintiff lodged a complaint in the Municipality on 7-11-1959 but no action was taken. On 15-6-1961, the plaintiff purchased the 'gali' from Tejdan and Chain Singh. This 'gali' was kept for the passage of the plaintiff and Champa Lal and the plaintiff was to keep it uncovered. THE plaintiff then brought this suit on 10-8-1961 and prayed for a perpetual injunction directing the defendants to refrain from discharging any filthy water on the 'gali' owned by the plaintiff and also to prevent him from creating nuisance. It was also prayed that the defendant be directed to remove the spout.

(2.) THE defendant stated that the 'gali' became a khalsa 'gali' in 1957. THE house of Champa Lal also opens on it. THE defendant had opened or built the spout in 1953. THE 'gali' also has the latrine of the plaintiff and filthy water of the latrine also spreads in the same 'gali'. THE sale of the 'gali' in favour of the plaintiff was collusive and fraudulent to deprive him and Champa Lal of the lawful use thereof.

(3.) NOW, the plaintiff had alleged that the defendant was throwing filthy water on the 'gali' owned by him and this is nothing but a plea of trespass on the land. The evidence and finding is also of these facts but the legal inferences were limited to nuisance only. No new case is being made out in favour of the plaintiff if proper legal inferences are deduced, nor can any relief be refused because the plaintiff purchased the 'gali' which act as held above is not an act of fraud. The difficulty arises because of the provisions of the Specific Relief Act, according to which injunction must not be given wherein a case for continuing breach, the plaintiff has acquiesced in the wrong. A person "acquiesces" when he abstains from interfering while a violation of his legal right is in progress. He is also said to acquiesce though not properly if he refrains from seeking prompt redress when a violation of his right, of which he did not know at the time it took place is brought to his notice In the former case, it means such quiescence as assent may reasonably be inferred from it and is no more than an instance of estoppel by word of conduct disentitling him to an injunction. In the latter, mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action or even an express promise unaccompanied by consideration, cannot take away such right. De Misocha vs. A l (7), as there can only be acquiescence where there is knowledge. While delverying the 1906 Tagore Law Lactures on the law of Specific Relief in British India Satish Chandra Banerji (See the first edition at p 820) observed that delay in itself short of limitation period, whether in objecting or in suing is of scarcely any consequence where the defendant has not been pre-judiced thereby but delay may also be evidence of acquiescence and in the case of a continuing breach, acquiescence will bar the ground of an injunction of any kind whatsoever. "mere lapse of time as evidencing acquiescence is not to be measured by any cycle of the heavenly bodies, but such depend upon the circumstances of each particular case. "