The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.69 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Natabar Chakra and others …. Appellants Prafulla Kumar Mishra and others …. Respondents -versus- Appeared in this case:- For Appellants For Respondents : : Mr. R.K. Mohanty, Sr. Advocate and Ms. S. Mohanty, Advocate Mr. Dillip Kumar Mishra, Advocate appearing on behalf of Mr. B.K. Nayak, Advocate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 13.02.2024 / date of judgment :21.03.2024 A.C. Behera, J. The 2nd appeal has been preferred against the confirming judgment. 2. The appellants of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.07 of 1984 and they were the // 2 // appellants before the 1st appellate court in the 1st appeal vide T.A. No.40 of 1989. 3.
Legal Reasoning
The respondents of this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.07 of 1984 and they were the respondents before the 1st appellate court in the 1st appeal vide T.A. No.40 of 1989. 4. The suit of the plaintiffs vide T.S. No.07 of 1984 was a suit for mandatory injunction and damages. 5. The case of the plaintiffs before the trial court in the suit vide T.S. No.07 of 1984 was that, they(plaintiffs) are both the husband and wife respectively. The defendant no.1 is the father of the defendant nos.2 to 4. The plaintiffs and the defendants are the adjacent neighbour of each other. According to the plaintiffs, they made a drain on their own land at the Western side of their house in order to discharge the water of their house, but, since the year 1975, the defendants started discharging the foul water of their house into the said train by making some holes on their Eastern side compound wall, as a result of which, unhygienic atmosphere created for the plaintiffs family. The defendants also demolished a portion of the compound wall of their house 06.06.1980, // 3 // thereby exposing the front part of the house of the plaintiffs to the trespassers, thieves, stray dogs, cattle etc. The defendants deliberately discharged their roof water towards the tin shed of the plaintiffs causing damage to the same. In spite of repeated requests and notices by the plaintiffs to the defendants to close the holes of their compound wall and to stop the discharge of foul water into the drain of the plaintiffs, the defendants did not pay any heed to the same. For which, without getting any way, the plaintiffs approached the civil court by filing the suit vide T.S. No.07 of 1984 against the defendants praying for a decree of mandatory injunction against the defendants in order to direct the defendants to close the holes on their compound wall and not to discharge any water of their house into the drain of the plaintiffs and not to trespass into area of the plaintiffs and not to discharge the roof water to the tin shed of the plaintiffs and to direct the defendants to pay damages along with pendente lite and future interest on the claimed damages. 6. Having been noticed from the trial court in the suit vide T.S. No.07 of 1984, the defendants contested the same by filing their joint written statement after taking their stands therein that, the drain is situated on their own land and the said drain was constructed by them (defendants) much before the starting of the construction of the house by the plaintiffs. They(defendants) have been discharging the water of their house into // 4 // their drain since 1962. They (defendants) denied the allegations alleged by the plaintiffs that, they demolished their compound wall and kept open to the front portion of the house of the plaintiffs. Their roof water has been discharging to the East since the construction of their house, but, the plaintiffs have constructed their tin shed recently in the year 1980 with an ulterior motive to put a cement motor on the edge of the upper portion of the tin shed. As such, the defendants claimed that, the drain belong to them and they have not caused any damage or inconvenience to the plaintiffs. For which, the suit of the plaintiff is liable to be dismissed. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eleven numbers of issues were framed by the trial court in the suit vide T.S. No.07 of 1984 and the said issues are:- I S S U E S 1. 2. 3. Have plaintiffs got any cause of action for the suit? Is the suit maintainable? Is the suit barred by law of estoppel, waiver and acquiescence? 4. Whether the plaintiffs or defendants constructed the alleged drain? 5. Whether the plaintiffs or defendants acquired title over the suit drain by adverse possession? 6. Whether the drain has been constructed in 1964 or 1962? // 5 // 7. Have the defendants committed any act of nuisance by discharging foul and filthy water through suit drain? 8. Have the plaintiffs wall of the building damaged by flow of polluted water? 9. Have the defendants acquired right of the easement over the suit drain? Have the defendants got other alternative way to discharge water? 10. Whether plaintiffs are entitled to get damages from defendants for causing demolition of their compound wall W-3, damaging plaintiffs’ wall by H1 to H3, tin shed by causing nuisances? 11. To what other reliefs, if any, the plaintiffs are entitled? 8. In order to substantiate the aforesaid reliefs sought for by the plaintiffs in the suit vide T.S. No.07 of 1984 against the defendants, they (plaintiffs) examined altogether seven numbers of witnesses from their side including the plaintiff no.1 as P.W.1 and relied upon the documents vide Exts.1 to 13. On the contrary, in order to defeat/nullify the suit of the plaintiffs, the defendants examined four witnesses from their side including the defendant no.1 as D.W.4 and exhibited several documents vide Exts.A to M on their behalf. 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendants except // 6 // issue no.8 and basing upon the findings and observations made by the trial court in issue nos.1, 2, 3, 4, 5, 6, 7, 9, 10 and 11 in favour of the plaintiffs and against the defendants, the trial court decreed the suit of the plaintiffs vide T.S. No.07 of 1984 on contest against the defendants as per its judgment and decree dated 30.09.1989 and 25.10.1989 respectively and directed the defendants to close the holes on their compound wall and injuncted them(defendants) permanently from discharging any water from their side into the drain of the plaintiffs called as disputed drain and also directed the defendants to give compensation of Rs.720/- as damage sustained by the plaintiffs giving liberty to the plaintiffs to go for execution of the order according to law assigning the reasons that, as it has been established that, the disputed drain belong to the plaintiffs and they are in possession over the same, and the defendants have no right on the said drain, but, they (defendants) are unauthorizedly discharging the foul/dirty water of their house into the said drain making holes on the eastern side compound wall of their house and as the defendants are creating unhygienic atmosphere for the plaintiffs family, for which, they(defendants) should be directed through mandatory injunction to stop discharging unhygienic water into the said drain by closing the holes of their compound wall, for which, the plaintiffs are entitled to get damages from the defendants. // 7 // 10. On being dissatisfied with the aforesaid judgment and decree dated 30.09.1989 and 25.10.1989 respectively passed by the trial court in the suit vide T.S. No.07 of 1984 in favour of the plaintiffs and against the defendants, they(defendants) challenged the same by preferring the 1st appeal vide T.A. No.40 of 1989 being the appellants against the plaintiffs by arraying them(plaintiffs) as respondents. When, during the pendency of the 1st appeal vide T.A No.40 of 1989, the respondent no.1(who was the plaintiff no.1 in the suit vide T.S. No.07 of 1984) expired, then, in his place, his legal heirs were substituted as respondent nos.1(a) to 1(f). After hearing from both the sides, the 1st appellate court as per its judgment and decree dated 31.01.1995 and 14.02.1995 respectively passed in the 1st appeal vide T.A. No.40 of 1989 confirmed the judgment and decree passed by the trial court in the suit vide T.S. No.07 of 1984 in favour of the plaintiffs and against the defendants accepting all the findings and observations of the trial court in its judgment and decree in favour of the plaintiffs and against the defendants. 11. On being aggrieved with the aforesaid judgment and decree passed by the 1st appellate court in T.A. No.40 of 1989 confirming the judgment and decree passed by the trial court in the suit vide T.S. No.07 of 1984, they(defendants, those were the appellants in the 1st appeal vide // 8 // T.A. No.40 of 1989) challenged the same by preferring this 2nd appeal being the appellants against the substituted legal heirs of the plaintiff no.1 and as well as against plaintiff no.2 by arraying them as respondents. 12. This 2nd appeal was admitted on formulation of the following substantial questions of law :- (i) Whether non-consideration of the evidence from the side of the defendants, i.e., Exts.B, C. and D and the Amin Commissioner’s report has affected the defendants’ case and thereby the courts below committed error in decreeing the plaintiffs’ suit? (ii) Whether the courts below committed an error in not considering the evidence of the defendants in respect of their easementary right of discharging water? 13.
Legal Reasoning
I have already heard from the learned counsels of both the sides. 14. So far as the formulated 1st substantial question of law, i.e., whether non-consideration of the evidence from the side of the defendants, i.e., Exts.B, C and D and the Amin Commissioner’s report has affected the defendants case and thereby courts below committed error in decreeing the plaintiffs suit is concerned; It appears from the record that, Ext.B is the certified copy of the Amin Badar in P.F.I. Case No.1253/60-61, Ext.C is the copy of the plan of the building of the plaintiffs and Ext.D is the original plan. // 9 // 15. It is the concurrent findings of the trial court and the 1st appellate court in their respective judgments and decrees after appreciating the oral and documentary evidence in the record on facts that, the drain is inside the land of the plaintiffs and the plaintiffs are in possession over the said drain, in which, the defendants have no interest. The compound wall of the house of the defendants is adjacent to the drain of the plaintiffs and the defendants are discharging their unhygienic foul water into the said drain of the plaintiffs making some holes in their compound wall. Therefore, even if, the Exts.B, C and D and the report of the Amin Commissioner shall be taken into consideration, the same cannot alter/change the above concurrent findings on facts given by the trial court and the 1st appellate court against the defendants. For which, non- consideration of Exts.B, C, D and the report of the Amin Commissioner cannot and shall not affect the judgments and decrees passed by the trial court and 1st appellate court in favour of the plaintiffs and against the defendants in any manner. 16. So far as the 2nd formulated substantial question of law, i.e., whether the courts below committed an error in not considering the evidence of the defendants in respect of their easementary right of discharging water into the drain is concerned; // 10 // On this aspect the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) AIR 1983 (Allahabad)-223 : Prabhu Narain Singh.vrs. Ram Niranjan(deceased by L.Rs.) and others— Easement Act, 1882—Sections 7 & 15—Drain Water flowing one’s house over other person’s land for twenty years—No easementary right accrues.(Para-5) (ii) AIR 1990(Himanchal Pradesh)-17, 1989 Civil Court Cases-304(Himachal Pradesh) : Kailash Chand and another vrs. Smt. Guddi and others—Easement Act, 1882—Sections 7 and 15—Acquisition of right by prescription—Right to throw refuse and to use the property of others for purposes of easing thereon, amounts to nuisance—Commission of a nuisance on the property of another person cannot be claimed by way of an easementary right—Plea of necessity to commit nuisance, not permissible.(Para-8) (iii) 1988 Civil Court Cases-62 (Andhra Pradesh) : B. Susheelamma vrs. L. Heeralal and another—Digging a well by owner in his property adjacent to the property of another—it is an actionable nuisance and substantial injury is likely to arise—Grant of mandatory injunction is legal. (iv) 2000 CCC(1)-245(S.C.) : Ramji Patel and others vrs. Nagrik Upbhokta Marg Darshak Manch and others— Diary owners storing Cow/Bufallow dung and diary wastage near water supply pipeline in village Lalpur— Diary owners could not be permitted to continue their // 11 // such activities in those villages. Such activities of diary owners are public nuisance. (v) AIR 1991 S.C.-420 : Subash Kumar vrs. State of Bihar and others—Right to live is a fundamental right under Article-21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. (vi) AIR 1987 S.C.-1086 : M.C. Meheta and another vrs. Union of India others—Life, public health and Ecology have priority over unemployment and loss of revenue. (vii) Civil Appeal No.2566 of 2019 : Banglore Development Authority vrs. Mr. Sudhakar Hegde and others (decided on 17.03.2020 Paras-77 and 79)—Courts and environment—Courts today are felt with increasing environmental litigation. The protection of the environment is premised not only on the active role of the courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. (viii) 94(2002) CLT-34 & 2002 (Suppl.) OLR-373—Nehru Paribesha Surakhya Committee, represented through its President and another vrs. State of Orissa and others—Where a court finds that by establishment of an industrial unit, there is likelihood of causing imbalance to ecology and hazard to healthy environment, then, in that case, court would direct closure of such unit. (ix) (2009)42 OCR(S.C.)-435: U.P. Pollution Control Board vrs. Dr. Bhupendra Kumar Modi and another— In the matter, where it affects public health, the courts // 12 // cannot afford to deal lightly with cases involving pollution of air and water. 17. When, as per the dictums of the Hon’ble Courts and Apex Court in the ratio of the aforesaid decisions “for the flowing/discharging of dirty/foul/unhygienic water over another person’s land, a person/citizen cannot be allowed under law to claim an easementary right, because, discharge of dirty/foul/unhygienic water over the land of another person itself is a nuisance and commission of a nuisance on the property of another cannot be allowed by way of an easementary right, when it is the duties of every court not to deal with the matters relating to environment concerning the life and health of the citizens in a casual or a routine manner, but, to deal with the said matters giving priority to the life and health of the citizens in order to achieve the constitutional guarantee under Article-21 of the Constitution, as right to get pollution free air falls within the ambit of Article-21 of the Constitution of India, 1950, because, entertainment of environment is the basic source of human life and when, here in this suit/appeal at hand, both courts, i.e., the trial court and as well as the 1st appellate court in their respective judgments and decrees have held after appreciating the evidence and the materials available in the records on facts that, the defendants are creating nuisance, i.e., unhygienic atmosphere for the plaintiffs family members by discharging their foul water into the drain of the plaintiffs making // 13 // holes in their compound wall into the drain of the plaintiffs, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to (supra), it cannot be held that, the judgment and decree, i.e., decree for mandatory injunction passed by the trial court in the suit vide T.S. No.07 of 1984 in favour of the plaintiffs and against the defendants directing the defendants to close the holes in their compound wall and the decree for permanent injunction against the defendants injuncting them (defendants) permanently from discharging their water into the drain of the plaintiffs and as well as directing the defendants to give compensation of Rs.720/- as damages to the plaintiffs on account of discharging their foul water into the drain of the plaintiffs and the confirmation of the same by the 1st appellate court as erroneous, because, life, health and ecology have priority over all other matters. 18. When the continuous discharge of foul/dirty water by the defendants into the private drain of the plaintiffs in their own land near their residential house had/has been affecting the life and health of the plaintiffs family members, then at this juncture, the judgments and decrees passed by the trial court and the 1st appellate court cannot be unsustainable under law. For which, the question of interfering with the same through this 2nd appeal filed by the appellants (defendants) do not arise. Therefore, this 2nd appeal filed by the appellants (defendants) must fail. // 14 // 19. In the result, this 2nd appeal filed by the appellants(defendants) is dismissed on contest against the respodents(plaintiffs), but without cost. 20. The judgment and decree dated 30.09.1989 and 25.10.1989 respectively passed by the trial court in T.S. No.07 of 1984 and the confirmation of the same by the 1st appellate court are confirmed. Judge Orissa High Court, Cuttack The 21st of March, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: Authentication Location: OHC, CUTTACK Date: 21-Mar-2024 14:10:57