Surat Singh v. Banwari

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: Mr. Mahipal Singh, Advocate for the appellant. Mr. Rajat Panjeta, Advocate for Mr. R.S.Chahar, Advocate for the respondent. G.S.SANDHAWALIA, J. ***** The defendant is in appeal aggrieved against the injunction granted by Sub Judge Ist Class, Jhajjar dated 24.3.1986 wherein he has been restrained from operating his thresher on his plot shown by letters DEFG for threshing wheat. The said order has been upheld by the Additional District Judge, Rohtak vide judgment and decree dated

2.9.1986. Case of the plaintiff was that he was owner in possession of the house detailed in the plaint and the defendant being his neighbour towards the Northern side has installed thresher for threshing wheat on hire basis which has led to dust and noise pollution and disturbing the life of the plaintiff as well as his family and other neighbourers which necessitated the filing of the suit for perpetual injunction. The defendant in his written statement took the defence that house of the plaintiff was not adjacent to R.S.A.No. 2911 of 1986 -2- **** the house of the defendant rather the plot belongs to father of the plaintiff; that he had been running the thresher for the last 6-7 years and the thresher was out side the village area and he had installed tubewell and used the plot for agricultural purposes. The Trial Court also appointed Sh. Sham Sunder Goel, Advocate as Local Commissioner who also inspected the site and submitted his report Ex. PW4/A alongwith site plan Ex. PW4/B in the presence of the Members of the Panchayat. On the basis of the evidence led by the parties, the Trial court came to the conclusion that the witnesses had clearly stated that the site ABCD in the site plan Ex. PW5/A was owned and possessed by the plaintiff and this fact was further proved and corroborated by the report of the Local Commissioner and decided the fact that the plaintiff was owner in possession of the suit property under Issue No.1. Under Issues No.2 and 3, the Trial court taking into account the site plan on record and the report of the Local Commissioner came to the conclusion that the thresher was adjacent to the house of the plaintiff and from the statement of PW4 it is clear that when the thresher was being run for threshing the grain of the public on electric power or diesel engine, it was creating a nuisance and accordingly, the plaintiff was aggrieved and thus decided issues No.4,5 and 6 by holding that the suit was maintainable and the plaintiff has a cause of action being neighbour of the defendant and Section 133 of the Code of Criminal Procedure would not be attracted as it was not a case of public nuisance as the plaintiff had come forth in his personal capacity. Accordingly, the suit had been decreed and the defendant was restrained from using the said plot for threshing of the plot as mentioned above. The appeal filed by the defendant was also dismissed by the learned Additional District Judge, Rohtak. R.S.A.No. 2911 of 1986 -3- **** Learned counsel for the appellant has contended that the provisions of Section 91 of the Code of Civil Procedure were attracted to the facts of the case and, therefore, the suit could not have been filed without permission of the Advocate General or with the leave of the Court and secondly that the thresher was operating outside the village Abadi and the Courts below have misread the evidence. The counsel for the appellant, thus, attempted to formulate the above said questions of law. The contention of the appellant on the first issue of the provisions of Section 91 of the C.P.C. being attracted and the permission of the Advocate General to file the suit is without any substance as a perusal of the site plan would go on to show that the nuisance which was being created by the defendant was affecting the plaintiff whose plot/house was adjacent to the portion where the thresher was running for commercial purposes. This act of the defendant was creating nuisance both in the form of noise and air pollution which was affecting the plaintiff and his family whereas defendant himself was not residing in the plot in question but was using it for commercial purposes. The effect of running the thresher which was powered by electricity or by diesel engine have been taken into consideration by the Lower Appellate court which has come to the conclusion that evidence of PW1 to PW3 that dust which arises from the operation of the thresher was causing a nuisance to the plaintiff and members of his family and was a health hazard and, thus, it can be safely held that the nuisance was a private nuisance to the plaintiff and his family members and he is entitled to file the suit and, therefore, issues No.4 and 5 regarding the maintainability and cause of action were rightly decided by the Courts below against the defendants. The second point on which the appellant has stressed is that R.S.A.No. 2911 of 1986 -4- **** thresher was being run out side the village Abadi and the Courts below have misread the evidence regarding the location of the said thresher. As mentioned above, a perusal of both the site plans of the parties would go to show that the plot was within the phirni or the outer limit of the village and even in the site plan prepared by the Local Commissioner, the adjoining houses are also shown from which it would be clear that the area falls within the Abadi portion of the village, thus the submission of the appellant that he was carrying on agricultural activity in the fields is not correct. Accordingly, in view of the fact and circumstances of the present case, no question of law much less any substantial question of law arises for consideration in the present appeal and the same is dismissed being bereft of any merit and the judgment and decree of the Courts below restraining the appellant are upheld without any order to costs. October 20, 2011 Pka (G.S.SANDHAWALIA) JUDGE