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2016 DIGILAW 619 (HP)

Longu Ram v. Krishan Kumar

2016-04-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal has arisen against the impugned judgment and decree of the learned District Judge, Hamirpur rendered in Civil Appeal No. 66 of 2005, whereby the latter while reversing the judgment and decree of the learned trial Court allowed the appeal of the plaintiff/respondent herein (hereinafter referred to as the 'plaintiff') and decreed the suit. 2. Briefly stated, the facts of the case are that the plaintiff has filed the suit for permanent prohibitory perpetual injunction restraining the defendants from changing the nature and diverting and throwing the dirty water from bathroom, latrine and kitchen in the land comprised in Khata No.117 min, Khatauni No.126 min, Khasra No.435, measuring 0-15 marlas, situated in village Karer, Mauza Pahlu, Tehsil Barsar, District Hamirpur, H.P. The case of the plaintiff/respondent herein is that he is owner in possession of the suit land. The suit land is situated at a lower level than the land owned by the defendants which is at a higher level and the defendants have constructed their bathroom, latrine and kitchen and have diverted the flow of dirty water with the foul smell to the land of the plaintiff. The plaintiff objected and the defendants undertook to control their dirty water in their own land by digging a pit sufficient to observe the dirty water. The plaintiff requested the defendants time and agains but all in vain. Hence, the present suit. 3. The defendants contested the suit and filed the written statement, wherein preliminary objections have been raised qua maintainability, cause of action, estopple, non-joinder and mis-joinder of necessary parties. On merits, it is averred that the suit land is situated at a lower level and land of the defendant is situated at a higher level. The water is flowing since 1976-77 and the matter was raised before the Gram Panchayat and was compromised. The plaintiff has filed the present suit just to harass the defendants being unnecessary litigation. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 3. Whether the suit of the plaintiff is without any cause of action? OPD. 4. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction? OPP. 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 3. Whether the suit of the plaintiff is without any cause of action? OPD. 4. Whether the plaintiff is estopped from filing the present suit on account of his act and conduct? OPD. 5. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD. 6. Whether the defendant is entitled for any special costs under Section 35-A of CPC? OPD. 7. Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff. In appeal preferred by the plaintiff before the learned first Appellate Court against the judgment and decree of the learned trial Court, the learned first Appellate Court allowed the appeal and decreed the suit of the plaintiff. 6. Now the defendants have instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 24.08.2007, this Court, admitted the appeal instituted by the defendants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether in view of compromise Ext.D-1/A dated 21.12.1987, Ext.D-2/B dated 6.11.2001 the plaintiff is bound by the same and he having concealed the existence of these documents he is not entitled to discretionary relief of injunction and parties are bound by these documents? 2. Whether the plaintiff was estopped to file the suit on account of his own acts, admissions, consent and settlement of dispute through compromise dated 21.12.1987, 6.11.2001 and orders passed by the Local Panchayat Ext.D-3, dated 19.8.2003? Substantial questions of Law No.1 and 2: 7. The defendants stood averred by the plaintiff of theirs diverting and throwing dirty water from their bathroom, latrine and kitchen on to his abadi comprised in Khata No.117 min, Khatauni No.126 min, Khasra No.435, measuring 0-15 marlas, situated in village Karer, Mauza Pahlu, Tehsil Barsar, District Hamirpur, H.P. In sequel, he claimed of the discharge of the aforesaid dirty water from the bathroom, latrine, and kitchen of the defendants to his abadi sequelling emission of foul smell. Emission of foul smell from the dirty water of the bathroom and from sullage per se stood averred to be a nuisance warranting its being baulked by the suit of the plaintiff qua the defendants being permanently restrained from diverting the dirty water from the bathroom, sullage from the latrine on to the abadi of the plaintiff comprised in Khata No.117 min, Khatauni No. 126 min, Khasra No.435, measuring 0-15 marlas, situated in village Karer, Mauza Pahlu, Tehsil Barsar, District Hamirpur, H.P., standing decreed. 8. The learned trial Court dismissed the suit of the plaintiff. The short ground as manifested in the rendition of the learned trial Court in dismissing the suit of the plaintiff stood anvilled upon Ext.D-1/A with a portrayal therein of the defendants in the year 1987 whereat Ext.D-1/A stood executed, diverting the dirty water from their bathroom besides sullage on-to the suit land. However, with the plaintiff since 1987 omitting to restrain the defendants from committing the acts of diverting dirty water from their drain besides sullage on-to his land be speaks of his acquiescing to their acts. Moreover, the effect of his by his aforesaid omission his, hence acquiescing to the ensuing nuisance emanating from the acts aforesaid attributed by him to the defendants, is of the defendants standing estopped to belatedly concert to claim the relief of the defendants being restrained by a decree of permanent prohibitory injunction to commit the acts of nuisance attributed to them by him. Moreover, the learned trial Court also while non-suiting the plaintiff relied upon Ext.D-2/B, a compromise recorded inter se the parties at lis on 6.11.2001, whereby the litigating parties herein stood conjointly obliged to construct a drain carrying a width of one foot, along the side of the danga of defendant Longu Ram, expenses incurred thereon stood agreed in Ext.D-2/B to be jointly shared by the litigating parties. However, with the plaintiff suppressing the aforesaid factum besides withholding from the learned trial Court both Exts.D-1/A and D-2/B stood concluded by the learned trial Court of the plaintiff committing a misdemeanor of suppressio veri whereupon the equitable relief of injunction as prayed for by the plaintiff before it stood declined. 9. However, with the plaintiff suppressing the aforesaid factum besides withholding from the learned trial Court both Exts.D-1/A and D-2/B stood concluded by the learned trial Court of the plaintiff committing a misdemeanor of suppressio veri whereupon the equitable relief of injunction as prayed for by the plaintiff before it stood declined. 9. The learned 1st Appellate Court discounted the probative efficacy of Exts.D-.1/A and D-.2/B and of Ext.D.3, also it dispelled the invocation of the principle of estopple against the plaintiff besides of its operating against the plaintiff for precluding him to institute a suit against the defendants qua the reliefs agitated therein merely on the score of the aforesaid exhibits constituting photo copies of the original, the latter remaining unadduced into evidence by the defendants rendered the exhibits aforesaid standing not proved in accordance with law with the sequelling effect of theirs being unreadable. 10. Be that as it may, primarily before alluding to the reasons assigned by the learned 1st Appellate Court for discounting the probative efficacy of the aforesaid exhibits, it is imperative to dwell upon the prime factum of whether the exhibits aforesaid do as reasoned by the learned trial Court constitute estopple against the plaintiff instituting the suit embodying therein the relief of permanent prohibitory injunction against the defendants being restrained from committing acts of nuisance as stood attributed to them by him. Ext.D-1/A stood recorded in the year 1987. It stands signatured by the predecessor-in-interest of the plaintiff. There is a palpable recital therein of the defendants thereat committing acts of nuisance as stands averred against them in the plaint. Even when the defendants committed the acts of nuisance on the suit property owned by the plaintiff, the latter omitted to for an inordinately procrastinated period of 13 years launch an appropriate civil action for restraining the defendants from proceeding to do so. Even when the defendants committed the acts of nuisance on the suit property owned by the plaintiff, the latter omitted to for an inordinately procrastinated period of 13 years launch an appropriate civil action for restraining the defendants from proceeding to do so. A proactive procrastination on the part of the plaintiff in omitting to make appropriate concerts to stop or baulk the defendants from committing their acts of nuisance on the suit property necessarily bespeaks of the predecessor-in-interest of the plaintiff besides the plaintiff acquiescing to the act of nuisance attributed by him to the defendants, the said acquiescence tantamounts to abandonment or waiver by the plaintiff of his purportedly infringed rights qua the suit land by the defendants' committing the acts attributed by him to them, besides also ousts him to concert to belatedly baulk the defendants' from committing the acts of nuisance attributed to them by him. However, even though under Mark-DA signatured by the plaintiff, the latter thereto Ext.D-2/A stood prepared with a mandate comprised therein as stands adverted hereinabove. It bears the signatures of the plaintiff. The mandate of Ext.D-2/A stood infracted by the plaintiff as displayed by Ext.D.4 recorded on 19.8.2003 and as manifested by Ext.D-3. The plaintiff resiled from Ext.D-2/B whereas it comprised a compromise struck inter se the litigating parties. Even though the inferences aforesaid of the plaintiff by proactively procrastinating to despite Ext.D-1/A executed by his predecessor-in-interest in the year 1987 restrain the defendants from committing acts of nuisance on his property, of hence his acquiescing to the acts of nuisance committed on his property by the defendants warranting the invocation of the principle of estopple against him whereby he stood baulked to belatedly espouse an abated cause of action against the defendants, besides the prime factum of his suppressing it from the learned trial Court also his suppressing Ext.D-2/B and Exts.D-3 and D-4 from the learned trial Court also imperatively warranted from the learned 1st Appellate Court an inference of the plaintiff committing the misdemeanor of suppressio falsi, hence his standing disentitled to claim the equitable relief of permanent prohibitory injunction from it. However, the said inference stood undrawn by the learned 1st Appellate Court merely on the ground resting upon the factum adverted to earlier, efficacy whereof stand alluded to hereinafter. However, the said inference stood undrawn by the learned 1st Appellate Court merely on the ground resting upon the factum adverted to earlier, efficacy whereof stand alluded to hereinafter. Moreover, with the recitals in Exts.D-1/A, D-2/B, D-3 and D-4 bespeaking of the plaintiff reneging from Ext.D-2/B, hence the recanting of the plaintiff from the recorded recitals of Ext.D-2/B is also personificatory of the plaintiff despite executing Ext.DW-2/B with the defendant, his untenably precluding its implementation for no worthy reason. As such it appears that he was making assiduous attempts to scuttle Ext.D-2/B besides was ultra-interested to constitute a plaint before the learned trial Court for restraining the defendants from committing acts of nuisance, if any, as stands attributed therein qua the defendants by him for merely escaping the liability fastened upon him under Ext.D-2/B qua his conjointly along with the defendants constructing a drain carrying a width of one foot as also his jointly along with the defendants bearing the expenses towards its construction. Obviously when he had no worthy reason nor had any tangible ground for not implementing Ext.D-2/B besides when he withheld it from the learned trial Court, no other inference of hence his committing the misdemeanor of suppressio veri whereby he stood disentitled to claim relief of injunction was drawable against him, as aptly done by the learned trial Court. 11. The effect of the aforesaid inferences drawn by this Court inasmuch as of acquiescence and of his standing estopped by his procrastinated delay since the execution in the year 1987 by his predecessor-in-interest of Ext.D-1/A to claim the relief as claimed in the plaint against the defendants was a sufficient ground to sway the learned 1st Appellate Court to non-suit the plaintiff. However, contrarily it has whittled down or withered the effect of the aforesaid inferences as stood attracted against the plaintiff merely on the flimsy reason of Ext.D-1/A and Ext.D-1/B, D-3 and D-4 being photo copies hence for want of their originals theirs standing not proved hence unreadable in evidence whereupon no reliance stood placed by the learned 1st Appellate Court, for coaxing it hence to draw the inferences aforesaid against the plaintiff, rather hence it proceeded to decree the suit of the plaintiff. The reasons as afforded by the learned 1st Appellate Court in discounting the probative vigour of the aforesaid exhibits is not worthy of acceptance by this Court as with the signatures of the predecessor-in-interest of the plaintiff existing on Ext.D-1/A besides the signatures of the plaintiff standing borne on Ext.D-2/B, in sequel whereto Exts. D-3 and D-4 stood prepared, renders the recitals constituted in both to carry immense tenacity. Moreover, with the signatures of the predecessor-in-interest of the plaintiff and of the plaintiff standing borne n Exts.D-1/A and D-2/B, existence whereof thereon when stood not denied by the plaintiff was connotative of the recitals contained in both standing accepted by the plaintiff. For reiteration the signatures of the predecessor-in-interest of the plaintiff borne on Ext.D-1/A stood not contested or disputed by the plaintiff. Hence, when contents thereof stood proved, it was inapt for the learned trial Court to dis-impute the probative vigour qua contents thereof on the flimsy pretext of theirs standing not proved by adduction into evidence by the defendants of theirs respective originals. Furthermore, there being no communication in the deposition of Pws qua the recitals in Exts.D-1/A and D-2/B, being fictitious. In aftermath, the inferences aforesaid of theirs constituting estopple against the plaintiff arising froma procrastinated delay on the part of the plaintiff to launch civil action against the defendants for restraining them to commit acts of nuisance on his land gains immense momentum. 12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are not based upon a proper and mature appreciation of the evidence on record. Such findings are rather anchored upon inadmissible evidence. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, both the substantial questions of law are answered in favour of the defendants/appellants and against the plaintiff/respondent. 13. In view of above discussion, the present Regular Second Appeal is allowed and the suit of the plaintiff/respondent is dismissed. In sequel, the judgment and decree rendered by the learned first Appellate Court is set aside and of the learned trial Court is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.