MUNICIPAL BOARD Vs. RAI KAMLAPAT RAI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for an injunction. The plaintiff is one of the owners of a jheel near Gorakhpur known as the Ramgarh tal. Defendant 1 is the Municipal Board of Gorakhpur and defendants 2 and 3 are co- owners of the said jheel. The plaintiff seeks an order injunction in the following terms: That a permanent injunction be issued against the Municipal Board, Gorakhpur, for bidding it from constructing the drain and from accumulating or allowing to accumulate, and from flowing or discharging any rain, surplus, artificial or dirty and foul water or other material by any artificial means or operations or through the newly dug drain into or near or about the said Ramgarh tal or on the plaintiff's land.

(2.) The material facts of the case are not in dispute. Ramgarh jheel lies on a level lower than that of Gorakhpur. The jheel in the rains is about five miles long by three miles broad, in the dry season two miles long by one-and-a-half mile broad. The plaintiff avers that he derives along with the other co-owners a considerable income from the plants which grow in the jheel, from the fish in the jheel and from crops grown upon the land which is covered by the jheel during the rainy season but which during the dry season can be cultivated. The Municipal Board of Gorakhpur for purposes of draining part of the city of Gorakhpur have constructed a drain from the city to a point close to the Ramgarh tal. This drain was practically completed in 1935 and the Municipal Board intended to drain the storm water and the sullage and other dirty water from Gorakhpur into the jheel. The plaintiff objected. He averred that the drainage of the dirty water into the jheel would pollute the jheel and destroy the fish and plants, and further as a result of the construction of the drain a larger volume of rain water would flow into the jheel than did find its way into the jheel by natural water courses and sewage before the drain was constructed. The trial Court dismissed the suit. The learned civil Judge in the lower appellate Court reversed the judgment of the learned Munsif and has decreed the suit. The findings of fact by the learned civil Judge are against the Municipal Board. Upon a consideration of the evidence he found as follows: (1) Prior to the construction of the disputed drain only rain water and not sullage water of the city flowed into the plaintiff's lake. (2) The entire rain water of the city did not flow into the plaintiff's tal but only of half of the city. (3) Most of the water so flowing was absorbed in the intervening kachcha land and ponds and a very little quantity of even that half flowed into the plaintiff's tank. (4) It is not proved that the aforesaid water entered the plaintiff's tank at the point where the disputed drain empties its water now. (5) The above water formerly flowed through natural channels and not artificial ones and it is not proved that the disputed drain stands in place of them. (6) The new drain discharges into the plaintiff's tank the entire rain and sullage water of the city.

(3.) The learned Judge visited the jheel and in the course of his judgment referring to his inspection he observes: At the time of my inspection I found the place where the disputed water entered the plaintiff's tank so full of offensive smell, that it was undoubtedly impossible for any life to survive there. The entire rain water of such a big city as Gorakhpur is next likely to overflow the banks of the lake and the crops like Boro, Jarhan etc., which can only grow in shallow water, are likely to suffer. I therefore find that the disputed drain will cause injury to the plaintiff's crops, fish etc., in their lake.