1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 37 OF 2006 1. Shri Caetano Remedios Dourado, son of Joaquim Dourado, aged 66 years, occupation business, resident of H.No.38/A, St. Joauim Road, Borda, Margao, Goa. 2. Smt. Joana Ermina Dourado, wife of Appellant No.1, aged 59 years, occupation housewife, resident of H.No.38/A, St.Joaquim Road, Borda, Margao, Goa. .. Appellant/ (Original Plaintiffs) Versus 1. Shri Digambar A. Naik, son of Atma Naik, aged57 years, occupation business, resident at H.No. 38/B, Borda, Margao, Goa. 2. Smt. Nalini Digambar Naik wife of respondent No.1, aged 52 years, occupation housewife, resident at H.No.38/B, Borda, Margao, Goa. .. Respondents. (Original Defendants) Mr. M. S. Usgaonkar,Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the appellants. Mrs. A. A. Agni, Advocate for the respondents. 2 CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT:10 TH FEBRUARY,2009 . DATE OF PRONOUNCING THE JUDGMENT: 26 th FEBRUARY,2009. JUDGMENT : 1. This appeal is preferred by the plaintiff, whose application for temporary injunction came to be rejected. 2. The facts giving rise to this appeal, are as follows: The plaintiffs and the defendants are the immediate neighbours. The house of the defendants, lies to the east of the plaintiffs' house. The house of the plaintiffs' bears No.38/A and 2619 whereas that of the defendants, bears No.38/B. There is a common wall in between these two houses. The total area of the house of the defendants, is 50 square metres. The defendants purchased the said house under a mundkarial right from the erstwhile owner. The said house was made of mud as well as laterite stone. The house had Manglore tiles' roof and it was sloping towards the south. The wall between the house of the plaintiffs and the defendants, is a common wall. It is the contention of the 3 plaintiffs that their plot has a slope towards the east and southern portion of the plots of the plaintiffs and defendants, is at a more height as compared to northern portion. It is the contention of the plaintiffs that waste water as well as rain water from their plot used to flow from their plot into that of the defendants. It is their contention that to the south of the defendants' house, there is a drainage and the water from plaintiffs' plot, used to be discharged in that drainage. The said drainage was running from west to east and then from south to north. Further contention of the plaintiffs is that the defendants have demolished their old house and intend to construct a new house. While doing so, the defendants have blocked both the drainages. The plaintiffs made complaint of the same to the Municipal Council. The Municipal Council directed the defendants to remove blocks in the drainage, which lies to the east of the defendants' plot, but did not give directions with regard to the southern drainage. The plaintiffs submit that their right to discharge the water, is thus affected. Further it is the contention of the plaintiffs that since the defendants have pulled down their house, the eastern wall of the plaintiffs' house, is now exposed to rains. They contend that the defendants are bound to construct that wall and protect it from vagaries of nature. The plaintiffs, 4 therefore, sought a temporary injunction from restraining the defendants from blocking the drainage and directing the defendants to repair the walls. 3. The defendants had resisted the temporary injunction application by filing reply to the said application. The defendants contend that they are making construction of their house after obtaining necessary permissions from the Municipal Council. None of their work,is illegal and against the approved plan. The defendants deny that the water from the plaintiffs' house was ever being discharged on the plot of the defendants. The defendants deny the existence of a drainage to the south of their house. It is their contention that since there was no drainage in existence at south, there is no question of plaintiffs having right to discharge water. Further it is the contention of the defendants that the plaintiffs have constructed a new bungalow at their own plot, which is house No.2619. Due to the construction of the said plot, the plaintiffs themselves have blocked the natural flow of the water from their plot to the northern side where there is a nullah. It is their contention that water from the plaintiffs' plot, used to flow from south to north from their own plot into the nallah, which lies to the north of the plot. 5 The defendants also prayed for an injunction restraining the plaintiffs from diverting the rain water on the defendants' property from the southern side. 4. After considering the submissions made before him and the documents available on record, the learned Judge rejected the application filed by the plaintiffs and allowed that of the defendants and being aggrieved by that, this appeal has been preferred. 5. I have heard the learned Counsel for the appellants and the respondents. 6. We have seen that it is the plaintiffs' case that the defendants have blocked the drainage which lies to the south of the defendants' house. It is to be borne in mind that the plaintiffs specifically come out with a case that the drainage lies to the south of the plaintiffs' house and not to the south of the plot. The learned Judge of the Trial Court, has found on basis of the agreement of sale between the defendants and the original owner of the plot that there is no drainage to the south. The boundaries of the plot of the defendants,are described as follows : 6 “East - By drainage. West - Plot of the Caetano Remedios North - By passage of one and half metre width. South - By public road.” 7. Thus relying on these boundaries,the learned Judge concluded that there is no drainage to the south of the defendants' house. In the boundaries, there is no reference to the southern drainage,is a fact. Shri Usgaonkar, the learned Senior Counsel for the appellants/ plaintiffs, contends that the description is correct, but the learned Judge has lost site of the fact that the drainage does not lie beyond the boundaries of the plaintiffs' plot, but within the boundaries and, therefore, there is no mention of drainage to the south of the plot. He submits that part of the plot in fact, exists beyond the south drainage and, therefore, the description is not incorrect. Had the drainage been beyond the plot or the plot extended up to drainage, then, there would have been mention of the drainage in the description, but because of the fact that the said drainage lies within the plot boundary, there is no mention of the drainage to the south. As far as the eastern drainage is concerned, that appears to be a boundary of the defendants' plot. Rightly, therefore, on the 7 eastern side, the plot is shown to be demarcated by the drainage. The conclusion of the learned Judge, therefore, on the basis of this document that there was no drainage to the south, was not correct. He should have looked into the other evidence. 8. The learned Counsel for the respondents, contends before me that in the letter written by the Municipal Council to the defendants after spot inspection on 09.02.2006, a reference is made to eastern drainage and the drainage to the north. She submits that it is specifically observed in that letter that there is no drainage to the south as alleged. This inspection must have been carried out by the Municipal Council in the month of February, 2006 as the letter is dated 09.02.2006. This letter, therefore, depicts the position as on that date. The plaintiffs had made grievance for the first time to the Municipal Council by letter dated 31.3.2005. They make a grievance about the filling of eastern as well as southern drainage. It is specifically alleged in it that they have been discharging the water through this southern as well as eastern drainages and they are being filled and blocked. Obviously, the process of filling of these drainages, had begun some time in March 2005 i.e. a 8 year before the inspection by the Municipal Council. Therefore, there could be no trace of southern drainage. This letter, which is written in March 2005, is written at least three months prior to the institution of the suit. Obviously, the plaintiffs are not trying to make out a case of existence of drainage to the south for the first time in the suit and the said plea cannot be said to be an afterthought. 9. The plaintiffs have filed certain photographs before the Trial Court. Those photographs pertains to the house of the defendants before it was actually demolished, but after roof was removed. One thing one must bear in mind here, is that the existence of drainage to the east of the defendants' plot, is not at all disputed. It is in this background, those photographs filed, need to be looked into. The most eloquent photograph is at page No.89 of this paper book. The house, of which the roof is removed, is that of the defendants' and the other abutting having a roof, is that of the plaintiffs'. This position was not disputed. The photograph clearly shows a drainage abutting or touching the southern wall of the defendants' house. It is quite deep. It starts from the eastern wall of the plaintiffs' house and runs towards east and at the eastern corner of the plaintiffs' 9 plot, it turns towards north. The eastern drainage extends up to south-east corner of the wall of the defendants' house and southern drainage also extends from west to east and meets eastern drainage at this south-east corner of the house of the defendants. Now, it is not the defendants' case that there is any bath room in the south-east corner of their old house and this eastern drainage was used for discharging water from their house. If there was no bath room at south-east corner of the defendants' house, there was no reason for the drainage to extend up to the southern end of the house. An inference that can be drawn at this stage, is that the eastern drainage extends up to southern end and this clearly indicates further that it so extends to meet the southern drainage running from west to east. This conclusion is fortified from the photographs. 10. It was contended on behalf of the respondents/ defendants that the rain water from the plaintiffs' plot including waste water, used to flow to north from the plaintiffs' own plot and that now cannot flow as plaintiffs themselves, have obstructed that flow by construction of new house in the northern portion of the plot. The plaintiffs have constructed a house in the northern portion, is not disputed. 10 The question is whether the water from their plot used to flow from the drainage towards defendants' house. The photographs being photograph Nos. 33 and 34 at page No.202, are again eloquent. They show the water flowing from west to east and entering into the defendants' plot exactly at a place where the plaintiffs state that there is drainage. It was contended that the plaintiffs have dug new drainage in their plot and diverted the flow. That does not appear to be the fact. The photographs show that on the other end of lane which is in between the plaintiffs' house and the toilet of their house, that lane is at higher level. The other most important things that is seen in this photograph, is that there is an outlet at the south-east corner of the plaintiffs' house. The pipe is clearly seen in the south-east corner of the plaintiffs' house. The existence of such drainage pipe at south-east corner of the plaintiffs' house, clearly suggests that waste water from the plaintiffs' house was being discharged from that pipe into the drainage, which was in existence to the south of the defendants' house. The learned Judge of the Trial Court has not at all taken even a look at these circumstances and has rejected the application of the plaintiffs. It is due to ignoring these circumstances, the learned Judge came to conclusion of non-existence of 11 drainage at the south. 11. There are reports of the experts i.e. Architects' with regard to the topography etc. But then their observations and conclusions would be subject to they being cross-examined. As of today, the photographs which are not disputed, would be the best prima facie evidence. 12. The plaintiffs want temporary mandatory injunction directing the defendants to repair and strengthen the eastern wall of their house, which is now exposed to rain and weather. The photographs at page Nos. 89 and 90, show that the roof of the plaintiffs' house, protrudes beyond the wall. Obviously, this wall seems to be prima facie exclusively belonging to the plaintiffs. If it belongs exclusively to the plaintiffs, they may repair it, provided they establish a right to have it repaired by going over to the defendants' property. No mandatory injunction, at this stage, can be granted or granting such relief, would in fact, mean to granting a final relief. 13. It was contended that the defendants' construction would penetrate projected part of the roof of 12 the plaintiffs' house and the defendants should be restrained from causing harm to the roof. The defendants certainly have no right to cause any damage to the roof. The photographs Nos. 24 to 26 at page No.192, do show that the R.C.C. pillars are being erected touching the wall of the plaintiffs' house. The apprehension of the plaintiffs that the defendants' pillars would cause damage to the roof, appears to be well founded. The plaintiffs are certainly entitled to an injunction to prevent damage to their property. 14. It was contended on behalf of the respondents that the plaintiffs have not established any easementary right and such a right is said to be established only when a decree is passed in favour of that party. A reliance was placed on a case in Rame Gowda V. M. Varadappa Naidu reported in AIR (2004)1 Supreme Court Cases 769. The proposition that easementary right could be said to be confirmed only when it is so confirmed in the suit, cannot be disputed. The plaintiffs have alleged that they have been discharging the water since time immemorial. Therefore, it is clear that the plaintiffs have pleaded that they have such an easementary right. Prima facie, therefore, the Court has to see whether such a right was being exercised by the plaintiffs within two years 13 before institution of the suit and that appears to be the fact. 15. I am quite aware of the fact that the Appellate Court is not expected to interfere with the discretion used by the Trial Court and substitute its own. I am constrained to do this because of the fact that the learned Judge of the Trial Court, has ignored the evidence available on record and has arrived at a wrong conclusion. In the circumstances, the appeal must succeed. The appeal is allowed. The defendants, their agents and servants, are restrained from prohibiting the plaintiff from discharging the rain as well as waste water from their house into the southern drainage in defendants' plot. 16. The defendants are further restrained from causing any damage to the roof of the plaintiffs while erecting their own structure. The application filed by the defendants for injunction, stands rejected. Costs shall be cost in the cause. C. L. PANGARKAR, J. SMA