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2000 DIGILAW 341 (HP)

ZALAM SINGH v. SHIV RAM

2000-12-28

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This is plaintiffs second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 27.5.1993, passed by learned Additional District Judge, Kangra Division at Dharamshala, whereby the judgment and decree passed by the learned Sub Judge(l) Nurpur in Civil suit No.240 of 1985 has been set aside. 2. Brief facts- leading to the presentation of this appeal are that the appellant-plaintiff (hereafter referred to as the plaintiff), instituted a suit for declaration to the effect that the respondent- defendants (hereafter referred to as the defendants) have no right to obstruct the natural flow of water in their fields at points A to B (as shown in the site plan filed with the plaint) situated in Tika Kandi Mauza Bhugnara, Tehsil Nurpur District Kangra or to put up any Danga at point A to B to cause nuisance by blocking the water, which is likely to cause damage to the property of the plaintiff with the consequential relief of permanent injunction, restraining the defendants from causing any blockade or putting any obstruction in the natural flow of water through their fields between points A to B or at any other point in their fields together with a mandatory injunction for removal of the obstruction put up in the shape of Danga by the defendants at point A to B. It was averred in the plaint that the Abadis and the lands of the parties are situated in Village Kandi, as shown in the site plan filed with the plaint. The rain water of the Abadis flows from the lands of the defendants since time immemorial, prior to the parties settled in the said village. The Abadis of the plaintiff and others are at a higher level and the natural flow of rain water is towards the fields of the defendants. The defendants have no right to obstruct such flow, however, they put up a Danga at point A and B of the site plan without any right to do so and, thereby obstructed the natural flow of water. The matter was reported to the Gram Panchayat, which after enquiries, directed the defendants to allow the natural free flow of rain water through their fields and not to put up any obstruction thereto and also further directed the removal of the obstruction already put up. However, the defendants failed to comply. The matter was reported to the Gram Panchayat, which after enquiries, directed the defendants to allow the natural free flow of rain water through their fields and not to put up any obstruction thereto and also further directed the removal of the obstruction already put up. However, the defendants failed to comply. Plaintiffs served them with a registered legal notice but to no avail. Hence the suit. 3. The defendants contested the claim of the plaintiff. They took preliminary objection in their written statement that the site plan is not correct and is contrary to the spot position. On merits, the right of flow of natural water through the fields of the defendants has been denied and it has been claimed that in case such water is allowed to flow through their fields, that would cause damage to the fields. It is also claimed that the plaintiff after collecting the entire water wants to channelise and throw it into the fields of the defendants, which he has no right to do. Hence, the claim has been denied. 4. On the pleadings of the parties, the learned trial Court, framed the following issues: "1. Whether the defendants have no right to obstruct the natural flow of . rain water in their fields at point A to B as shown in the Site Plan, as alleged? OPP 2. Whether the plaintiff is entitled to relief of mandatory injunction for removal of the obstruction put up at point A to B by the defendants, as alleged? OPP 3. Whether the site plan is correct? OPP 4. Whether the plaintiff has no locus-standi to file the suit? OPD. 5. Whether the suit is not maintainable in the present form, as alleged? OPD. 6. Relief." 5. By his judgment dated 31.3.1989, the learned trial Judge decided Issues No. l to 3 in favour of the plaintiff whereas Issues No.4 and 5 were decided against the defendants. As a consequence, the suit was decreed. 6. The defendants preferred an appeal in the Court of District Judge, who, by the impugned judgment, allowed the appeal, set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff. 7. Feeling aggrieved, the plaintiff has preferred the present appeal. 8. I had heard the learned counsel for the parties and have gone through the record. 9. 7. Feeling aggrieved, the plaintiff has preferred the present appeal. 8. I had heard the learned counsel for the parties and have gone through the record. 9. This appeal was admitted for hearing on the following substantial questions of law: "1. Whether the right of the plaintiff-appellant is infringed with respect to the natural flow of the drainage water by the action of the defendant-respondents constructing a Danga obstructing the said flow". 2. What are the rights of plaintiff-appellant to channelise the natural flow of water from the land of the defendants under Easement Act? 3. When the defendant-respondents have failed to lead evidence regarding the correctness of the spot map and when there is no dispute between the parties regarding the identity of the suit land, is it permissible for the court to deny the relief to the plaintiff-appellant merely on the ground that no interference in the land of the plaintiff-appellant is made by the defendant-respondents?" 10. The learned lower appellate Court allowed the appeal and dismissed the suit of the plaintiff on the ground that the averments made in the plaint were too vague to identify the disputed properties and, so was the evidence led by the plaintiff and the decree passed by the trial Court. The question as to identity of subject matter of the1 suit is evidently a question pf fact, therefore, no substantial question of law, in fact, arises in this appeal. 11. In any case the deciding factor involved in the matter is as to whether | the suit property has been sufficiently described in the plaint to identify the i same so as to enable passing an effective and executable decree in the suit. 12. It was contended by the learned counsel for the appellant that site plan Ex.P-1 sufficiently identifies the suit property whereas; the defendants have not led any evidence to show that Ex.P-1 is incorrect. The identity of the suit properties was thus established in view of the site plan Ex.P-1 and an effective and executable decree could be passed, as was rightly passed by the trial Court and the conclusions of the lower appellate Court to the contrary, are unsustainable. 13. Order 7 Rule 3 of the Code reads as follows: "3. The identity of the suit properties was thus established in view of the site plan Ex.P-1 and an effective and executable decree could be passed, as was rightly passed by the trial Court and the conclusions of the lower appellate Court to the contrary, are unsustainable. 13. Order 7 Rule 3 of the Code reads as follows: "3. Where the subject-matter of the suit is immovable property - Where the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers." It is evident from the aforesaid provisions that the plaintiff must give sufficient description of the property, subject matter of the suit to identify them so that effective and executable decree could be passed. 14. The suit of the plaintiff relates to the relief of declaration of rights over and with respect to the immovable property, permanent prohibitory injunction and mandatory injunction qua immovable property like house, fields, water channel and wall. Therefore, in view of the aforesaid provisions,- the plaintiff was duty bound to give sufficient description of the properties involved in the suit so as to identify them. To identify the suit properties, the plaintiff had filed site Plan Ex.P-1 with the plaint. This site plan is not on scale. It is ; not known as to who has prepared it. It does show houses/fields and a nali but it is not specified as to which house and fields are owned by the plaintiff and which are owned by the defendants. The dimensions of whatever have been depicted in Ex.P-1 are not stated. This site plan has been exhibited by the plaintiff in his statement as Ex.P-1. This is not the case of the plaintiff that he has prepared site plain Ex.P-1. He is admittedly illiterate and, therefore, evidently incapable of identifying the suit properties, the site plan Ex.P-1 is not proved in accordance with law. 15. The defendants have disputed the correctness of Ex.P-1 vide preliminary objection No. 1 in their written statement. Despite objections, the plaintiff did not care to take steps to supply the omissions in describing the suit property, so as to identify the same. 15. The defendants have disputed the correctness of Ex.P-1 vide preliminary objection No. 1 in their written statement. Despite objections, the plaintiff did not care to take steps to supply the omissions in describing the suit property, so as to identify the same. In view of failure of the plaintiff to give proper descriptions of the suit properties and to prove Ex.P-1, it was not necessary for the defendants to lead any evidence to disprove the correctness of Ex.P-1 because whatever is "not proved" need not be "disproved". It was not for the defendants to identify the subject matter of the suit. 16. The impugned judgment and decree are thus based on proper appreciation of the material on record and permissible conclusions drawn there from and no interference therewith by this Court is called for. 17. As a result, this appeal merits dismissal is accordingly dismissed. Costs on parties.