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2005 DIGILAW 941 (PNJ)

Sharif v. Kutbudin

2005-09-05

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. For the reasons mentioned in the application filed under Section 5 of the Limitation Act, delay of one day in filing the appeal is condoned. C.M. No. 11605-C of 2004; For the reasons mentioned in the application filed under Section 151 C.P.C. delay of 38 days in re-filing the appeal is condoned. R.S.A. No. 4577 of 2004: This order shall dispose of R.S.A. No. 4577 of 2004 and R.S.A. No. 4568 of 2004 as the same questions on facts and law have been raised and the parties are also the same in both the appeals. 2. Facts are being referred from R.S.A. No. 4577 of 2004. 3. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent Kutbudin is entitled to a decree for permanent injunction restraining the defendant-appellant from interfering in his peaceful possession and from discharging the used water of the hand pump over the suit land. The other suit filed by the defendant-appellant from which the R.S.A. No. 4558 of 2004 has arisen, has also been dismissed. 4. It is admitted position that the suit property was purchased by the plaintiff-respondent on payment of valuable sale consideration and it has been found that there is open space of the plaintiff-respondent where the rainy water of the house of the plaintiff-respondent falls. The aforementioned factual position has been clarified on the basis of site plan Ex.Pl. The claim of the defendant-appellant that the use water of the has pump used to flow from the drain to the pairing on the southern side from the very beginning, has been rejected. The other argument that the defendant-appellant has acquired any easement right of discharge of his used water has also not found favour with the Courts beiow. In the absence of any such right the plaintiff-respondent, who has purchased the property, has been held entitled to stop the flow of water towards the suit land, which is owned and possessed by him. The existence of any drain on the north has also not been established by the report of the Local Commissioner (Ex.DX) because it is silent about the aforementioned fact. It only suggests that a public street on the south of the defendant-appellant exists. The existence of any drain on the north has also not been established by the report of the Local Commissioner (Ex.DX) because it is silent about the aforementioned fact. It only suggests that a public street on the south of the defendant-appellant exists. Therefore, it has been held that the defendant-appellant has no right to discharge the used water from his hand pump through the suit land owned and possession by the plaintiff-respondent, who is found to be bonafide purchaser. Therefore, the suit filed by the plaintiff-respondent has been decreed and the suit filed by the defendant-appellant, which has led to the filing of the connected appeal, has been dismissed. 5. Having heard learned Counsel for the appellant at a considerable length, I am of the view that no interference of this Court would be warranted in the concurrent findings of fact recorded by both the Court below. The plaintiff-respondent has been held to be a bona fide purchaser of the suit property and the defendant-appellant in the absence of any easementary rights or any other right otherwise has been found to be interfering in the peaceful possession of the plaintiff-respondent by releasing the used water from his hand pump through the property of the plaintiff-respondent. Therefore, the relief of injunction has been rightly granted by both the Court below. The plaintiff-respondent has been held entitled to restrain the defendant-appellant from interfering in any manner whatsoever in his actual physical possession. There is no question of law, which would warrant admission of the appeals in exercise of jurisdiction under Section 100 of the Code. The appeal is wholly without any merit and is thus liable to be dismissed. In view of above, both the appeals are dismissed.