BAKHTAWARMAL Vs. BRIJ MOHAN

JUDGEMENT

(1.) This is a second appeal by the defendant in a suit for injunction.

(2.) In the bazar of Bhilwara there is a line of shops facing south. They were all covered by tiles so that the slope of the quarter of the shop was towards the north and the slope of the three fourth of the shop was towards the bazar on the south. There are buildings of third parties to the north of these shops. It appears that these shop-keepers made an arrangement for the discharge of the water of the northern slope in such a manner that a Nali, was constructed on the back portion of the shop above the first storey so that the water falling on the slope of the fourth part of each shop flowed on the back side in the Nali of each shop and water was carried from one Nali to another from west to east until it fell in a lane. The shop of the plaintiff is on the east and that of the defendant on the west side. The plaintiff instituted the present suit in the court of Munsif, Bhilwara on 1-7-47 and his plaint was amended on 16-3-48. The case of the plaintiff was that the defendant had reconstructed his shop in such a manner that he took his Nali within the construction and raised a three storeyed building. It was alleged that while doing so the defendant opened a Parnali in the third storey and the second Parnali on the top of the third storey and that the water from these Parnalis fell on the tiled roof of the shop of the plaintiff and thereby damaged the shop. It was also pleaded that while formerly the water of a fourth part of the shop fell in the Nali of the defendant and then flowed on to the Nali of the plaintiff. The new Parnalis inflicted a greater burden inasmuch as -

(3.) It was prayed by the plaintiff that the defendant be directed by an injunction to close the two Parnalis opened by him on the plaintiff's side. The defendant's plea was that so far as the Parnali over the third storey of the defendant was concerned it discharged the same quantity of water as used to be discharged previously from the slope of the defendant's shop and that the falling of the water from the height did not cause any damage to the plaintiff's shop inasmuch as water fell in the Nali and not on the plaintiff's shop. As to the Painali in the third storey it was said that it was not intended to use it for discharging foul water. The Learned Munsif by judgment of 22nd May 1952 found in favour of the plaintiff on all the points raised and decreed the suit directing the defendant to close the two Parnalis. The same view was upheld on appeal by decision of the learned District Judge, Bhilwara dated 14th November, 1953. The defendant has come in second appeal.