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2018 DIGILAW 43 (ORI)

Baikunthanath Das v. Nirmala Behera

2018-01-08

A.K.RATH

body2018
JUDGMENT : Dr. A.K. RATH, J. The plaintiffs are the appellants against a confirming judgment. 2. The plaintiffs-appellants instituted the suit for permanent injunction restraining the defendants from raising any construction of new latrine and urinal near the kitchen and to demolish the structures constructed by the side of the kitchen and not to allow dirty water to their bari. 3. The case of the plaintiffs is that they have constructed a house since 1956 over plot no.505 appertaining to khata no.83 in ward no.3 with a fence around it. The defendants purchased a land adjacent to it. They have constructed a house thereon very close to the boundary of the plaintiffs without any drainage facilities and not in accordance with the plan approved by the Municipality, as a result of which, the drain water flows into the bari of the plaintiffs. 4. The defendants entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendants is that their plan for construction of house building having been sanctioned by the Municipality, they constructed the latrine and bathroom 50 ft. away from the kitchen of the plaintiffs as per approved plan. There is neither kitchen nor any structure of the plaintiffs near the said latrine and bathroom. They are not discharging dirty water and waste materials towards the bari of the plaintiffs. 5. On the inter se pleadings of the parties, the learned trial court struck six issues. The parties led evidence, oral and documentary, to substantiate their cases. Learned trial court permanently injuncted the defendants not to discharge the dirty water from the latrine to the bari of the plaintiffs, but it refused to grant relief for demolishing the latrine. Assailing the said part of the judgment and decree, the plaintiffs filed appeal before the learned District Judge, Mayurbhanj, which was subsequently transferred to the court of the learned Civil Judge (Sr. Division), Baripada and renumbered as Title Appeal No.37/36 of 1994. The appeal was eventually dismissed. 6. The appeal was admitted on the following substantial question of law : “Whether the courts below erred in law in rejecting the prayer of the plaintiff-appellants for demolition of the part of the construction though the court came to a finding that construction was illegal and not in accordance with law.” 7. Heard Mr. R.K. Mohanty, learned Senior Advocate along with Mrs. Heard Mr. R.K. Mohanty, learned Senior Advocate along with Mrs. Sumitra Mohanty, learned Advocate for the appellants and Ms. Sunita Biswal, learned Advocate on behalf of Mr. S.D. Das, learned Senior Advocate for the respondents. 8. Mr. Mohanty, learned Senior Advocate for the appellants submits that the defendants are the adjacent plot owners. They have constructed a house closed to the boundary of the plaintiffs without any approved plan of the Municipality. They have also constructed a latrine without any drainage facility. Filthy water of the said latrine flows into the bari of the plaintiffs. Both the courts below granted relief of permanent injunction, but committed a manifest illegality and impropriety in not granting mandatory injunction to demolish the latrine standing over the defendants’ plot. He further submits that unless the latrine constructed by the defendants is not demolished, there is every possibility of flowing filthy water into the bari of the plaintiffs. 9. Per contra, Ms.Sunita Biswal, learned Advocate for the respondents submits that the courts below have permanently injuncted the defendants not to discharge the dirty water from the latrine to the bari of the plaintiffs. Thus, relief has been substantially granted. The second appeal involves no substantial question of law. 10. The courts below have permanently injuncted the defendants not to discharge the filthy water from the latrine to the bari of the plaintiffs. Thus relief has been substantially granted. Moreover, the decree passed in permanent injunction is executable. The substantial question of law is answered accordingly. 11. In the wake of aforesaid, the appeal, sans merit, is dismissed. No costs.