HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 1661 of 2001 Vijendra Singh Vs. Govind Ram Approved for reporting. Date of Decision:- 29.02.2008. Initial of Judge: …………………… …………………… …………………… HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 1661 OF 2001 Vijendra Singh Son of Narendra Singh R/o Village Barahat Tehsil – Bhatwari District Uttarkashi ....Defendant-Appellant Vs. Govind Ram son of Dalebu Ram Resident of village Barahat Tehsil Bhatwari, District Uttarkashi ….Plaintiff – Respondent 29.2.2008 Hon’ble Rajesh Tandon, J. Heard Shri V.K. Bisht Sr. Advocate assisted by Smt. Seema Sirohi, counsel for the appellant and Shri Rajendra Dobhal, counsel for the respondent. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and order dated 22.10.2001 passed by the District Judge, Uttarkashi in civil appeal no. 14 of 1999 as well as the judgment and order dated 30.9.1999 passed by the Civil Judge (J.D.) Uttarkashi in suit no. 36 of 1996. 3. Second appeal was admitted on the following substantial questions of law:- “1. Whether the compromise arrived between the previous owner of the house of defendant/appellant and plaintiff/respondent regarding drainage of dirty water and garbage is binding on defendant/appellant ? 2. Whether the courts below erred in law in considering the fact that notice in respect of relief claimed in the suit was already given to the defendant/appellant in the year 1991 and, therefore, the suit instituted for the same relief in the year 1996 was barred by law?” 4. Briefly stated, the plaintiff has filed a suit being suit no. 36 of 1996 praying for perpetual and mandatory injunction against the defendant. According to the plaint averments, the plaintiff has a double story residential house which has been constructed in the year 1977 over plot no. 2443 situate at village Barahat, Tehsil Bhatwari, District Uttarkashi and the same has been shown by the letters Aa, Ba, Sa & Da in the plaint map. The house of the defendant is situated over plot no. 2426 adjacent to the house of the plaintiff. Adjacent to the house of the defendant, there is house of Jagat Singh and Prem Singh over plot no. 2447. The land was purchased by Jagat Singh and Ravindra Singh from Gokul Chand and Kabutar Chand. It has been stated that in the year 1990, the plaintiff had filed a suit against Gokul Chand in the court of civil judge (J.D), Uttarkashi being suit no. 21 of 1990 for perpetual injunction against Gokul Chand for restraining him not to throw garbage of his house near the window of the plaintiff. The said place has been shown in site map with the letters Aa and Sa. It has further been stated that a compromise had taken place in that suit and the drainage of Gokul Chand was turned towards the house of Bachan Singh on the expenses of the plaintiff. The defendant purchased the said house from Gokul Chand in the year 1994 and thereafter, the defendant has been dumping garbage and drain water of his house at point Aa and Sa and creating nuisance. It has also been alleged that the defendant has created septic tank which has been shown by letters Ba, Pa, Fa and Bha and due to leakage in that tank, wall of the house of the plaintiff has been damaged, hence, the plaintiff has filed the present suit for perpetual injunction restraining the defendant to throw garbage and drain water near the window of the house of the plaintiff and mandatory injunction to close his septic tank. 5. A written statement has been filed by the defendant submitting therein that the house of the defendant was constructed before the construction of the plaintiff’s house. The plaintiff has constructed his house very close to the house of the defendant and has not left any space for rainy water as a result of which the wall of the plaintiff’s house absorb rainy water. It has been denied that the septic tank of the defendant is leaking. The defendant is not throwing any garbage near the window of the plaintiff’s house. The suit has been filed in order to harass the defendant and the same is liable to be dismissed. 6. On the pleadings of the parties, the trial court has framed the following issues:- 1. Whether the defendant throwing garbage and drain water on the same place which was the subject matter in original suit no. 21 of 1990? 2.Whether the septic tank in question constructed by the defendant and shown in site map by letters Pa, Pha & Bha creating moisture in the house of the plaintiff due to which causing damage to the house of the plaintiff? 3.Whether the suit is not properly valued and court fee paid is insufficient? 7. The plaintiff has examined himself as P.W. 1, Devendra, Prasad as P.W. 2, Khushi Ram as P.W. 3 and Himansu Shekhar Joshi as P.W. 4. The defendant has examined himself as D.W. 1 and Kalam Singh as D.W.2. 8. The plaintiff has produced 8 documents a per list 6 ga, one document as per list 54 ga, 4 documents as per list 57 ga, 2 documents as per list 63 ga and 2 documents as per list 68 ga. The defendant has not adduced any documentary evidence. 9. While deciding issue no. 1 with regard to construction of septic tank shown in schedule Aa by the letters Pa, Pha, Ba, Ch, the trial court has taken into consideration the suit no. 21 of 1990 as well as the decree passed in favour of the plaintiff and against Gokul Chand and Kabutar Chand. Reliance has also been placed on the statement of P.W.1 Govind Ram and P.W. 2 Devendra Prasad who have stated about their grievances. The trial court has relied upon the statement of P.W. 1 Govindram and P.W. 2 Devendra Prasad Bhatt and has recorded the findings to the following effect:- ^^bl laca/k esa lk{kh ih-MCY;w- & 1 Lo;~e xksfoUnjke us vius l&’kiFk ijh{k.k esa dgk gS fd xksdypUn us vius jlksbZ vkfn dh xUns ikuh dh ukyh mlds feyfd;r ds [kk0la0 2442 esa mlh LFkku ij Mkyh gS ftl LFkku esa orZeku esa izfroknh xUnxh dj jgk gS rFkk izfroknh ogka ij dwMk djdV Mky jgk gSA vkxs lk{kh us ;g Hkh dgk gS fd xksdypUn o dey flag ls mldk jkthukek gks x;k Fkk] jkthukek ds vuqlkj ukyh dks uxjikfydk dh ukyh esa Mky fn;k x;k FkkA dey flag ds lkFk ml eqdnek bl izdkj jkthukek gqvk Fkk fd oknh ds edku dh tks nhoky [ksr la 2442 dh rjQ fLFkr o ml ij nks f[kMdh iznf’kZr gS ml nhoky ls yxs 5-5 fQV Hkw&Hkkx ij oknh us vius ikl j[kk ‘ks”k Hkkx dey flag dks fMdzh dj fn;kA jkthukes ds ckn dey flag us fookfnr Hkw&Hkkx ij dwMk djdV o xUns ikus dks Mkyuk cUn dj fn;kA vkxs lk{kh us dgk gS fd ftl LFkku ij izfroknh dwMk djdV Mkyrk gS og LFkku mlds edku ds Hkwry ds djhc 10 fQV xgjkbZ ij gSA lk{kh ih-MCY;w- 2 nsosUnz izlkn HkV~V us Hkh vius l&’kiFk ijh{k.k esa dgk x;k gS fd izfroknh ckmaMªhoky ns j[kh gS rFkk viuh nhoky ij ukjnkus [kksy j[kh gS bl ukjnkus dh f[kMfd;ka mlh rjQ gS tgka izfroknh xUnk ikuh o dwMk Mkyrk gS A** 10. On the basis of the aforesaid, the trial court has recorded the finding that the dirty water is being thrown on the land of the plaintiff. 11. While deciding as to whether the septic tank in question constructed by the defendant creating moisture in the house of the plaintiff and causing damage to the house of the plaintiff, the trial court has recorded the finding that the septic tank constructed by the defendant has leakage which is creating moisture resulting into damage to the walls of the plaintiff’s house. 12. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiff and passed the order to the following effect:- ^^oknh dk okn O;; lfgr vkKIr fd;k tkrk gSA izfroknh dks LFkk;h :Ik ls fuf”k) fd;k tkrk gS fd os vius fgLls esa vk;s Hkou tks fd uD’kk utjh ifjf’k”V ^d* esa v{kj d][k]x]?k ls iznf’kZr gS ds Hkkx ls fudyus okys xUns ikuh o dwMk djdV dks oknh dh fookfnr Hkwfe [k0 ua0 2442 ds Hkkx tks utjh uD’kk ifjf’k”V ^d* esa yky jax ls fn[kk;k x;k gS rFkk oknh ds Hkou v]c]l]n ds e/; fLFkr 5-5 fQV pkSMs o iwjs yEckbZ esa Hkw&Hkkx ij dwMk djdV vFkok iku u fxjk;s A** 13. Aggrieved by the judgment and decree passed by the trial court, the defendant went in appeal. The appellate court has placed reliance on the statement of P.W. 1, Govindram, P.W.2 Devendra Prasad and P.W. 3 Khushi Ram, P.W.3 Khushi Ram has stated that after purchasing of the house, tank was shifted towards Eastern side of the defendant’s house which is causing damage to the walls of plaintiff’s house. The appellate court has also considered the local inspection and the report i.e. paper no. 26-C2 and has recorded the finding to the following effect:- “My learned predecessor made local inspection and prepared his report paper no. 26 C-2 in presence of both the counsel which giving topography of the place, it has been mentioned that the house of the plaintiff is in the down level. The roof of the plaintiff’s house and veranda of the defendant are in equal height. He also noticed that there was moisture on the walls and distemper of the walls was loosed. He has also noticed that soak pit and septic tank are situated in the veranda and adjacent to it there is roof of the house of the plaintiff. The plinth of the house of plaintiff is about 20 feet down from the house of the defendant.” 14. The appellate court has also observed that the defendant has admitted this fact that a compromise was arrived at between the plaintiff and the predecessor of the defendant wherein it was agreed that the predecessor of the defendant will divert the dirty water towards the drainage of the Nagar Palika. The finding of the appellate court to that effect is quoted below:- “12. Apart from above facts the witness of the defendant Sri Kalam Singh Rana D.W.2, admitted that whenever garbage is accumulated, the defendant get it cleaned by the sweeper. This also indicates that garbage and dirty water of the defendant’s house accumulates on the place in dispute and defendant feels necessity to clean it. As far as compromise in suit no. 21 of 1990 is concerned, there is no written document supporting the version of the plaintiff. However, plaintiff and his witnesses in their oral evidence stated that compromise was arrived at between the plaintiff and the predecessor of the defendant, wherein it was agreed that the predecessor of the defendant will divert his dirty water towards the drainage of Nagar Palika.” 15. On the basis of the aforesaid observations, the appellate court has also dismissed the appeal. 16. So far as the substantial questions of law involved in the present second appeal is concerned, both are interconnected. Both the courts below have recorded the findings of fact that the defendant has agreed that the predecessor of the defendant will divert the dirty water towards the drainage of Nagar Palika. Both the courts below, therefore, have rightly granted the decree for perpetual injunction as well as mandatory injunction. 17. So far as the submission of the appellant with regard to the notice in respect of reliefs claimed in the suit that the notice was given to the defendant-appellant in the year 1991 and the suit was instituted in the year 1996 is concerned, it may be pointed out that the defendant was a tenant of the premises and he purchased the same in the year 1994 from Gokulchand and the soak pit was constructed in the year 1991 and the nuisance was continuing. The defendant cannot be protected by evasive plea which was neither taken before the trial court nor before the appellate court. Therefore, the appeal is concluded by findings of fact. 18. In H.P. Pyarejan Vs. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 19. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held under:- “14. In our view, High Court has no jurisdiction in the second appeal interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 20. In view of the aforesaid, second appeal is liable to be dismissed being devoid of merit. 21. Consequently second appeal is dismissed. No order as to cots. (Rajesh Tandon, J.) 29.2.2008 Avneet