B. Susheelamma vs L. Heeralal and Another

K. Ramaswamy, J.—The Defendant is the Appellant herein. The Respondents laid the suit for mandatory injunction to close the well dug in plot No. 13 purchased by the Appellant. Admittedly the Respondents and the Appellant are adjacent owners. The Respondents laid the suit for mandatory injunction on the ground that without leaving any open space, the Appellant dug the well. Despite the Respondents� objection, the Appellant dug the well to a depth of 32 feet posing danger to the enjoyment of the property by the Respondents and the well water gets percolated into the site of the Respondents and it is, therefore, an actionable wrong obstructing the enjoyment of the property.

It is an admitted case that the Appellant has dug the well in her site. But, her ease is that the apprehension of the Respondents and the injurious effect thereof are only imaginary. Therefore, they have no factual basis.

On framing appropriate issues and adduction of evidence, the trial court accepted the case of the Appellant and dismissed the suit. On appeal the appellate Court reversed the finding and decreed the suit. Thus, this second appeal.

Sri N. Vasudev Rao, learned Counsel for the Appellant contends that the approach of the court below is vitiated by error of law. There is no practical damage or injurious effect on the enjoyment of the property by the Respondents. The well was dug by the Appellant for the purpose of drinking water The Respondents also dug a well in their land. Similar right is exercised by the Appellant and it cannot be said that it has injurious effect on the enjoyment of the right by the Respondents.

Therefore, the only question is whether the mandatory injunction granted by the court below is valid in law. The appellate Court, after considering the evidence, has held thus:

There is convincing and authentic evidence of the Assistant Engineer P.W.2 and there is the equally convincing testimony of the experienced masons P.Ws.2 and 3 and all of them stated in one voice that on account of sinking of the well at that spot, the water has been percolating into the Plaintiff�s plot and that lateral support also has been withdrawn and it is not therefore possible to lay any foundations and start a construction in that area.

It is also found that:

The facts as disclosed from the evidence clearly show that the Defendant had committed an actionable nuisance and substantial injury to the Plaintiff�s property is likely. The apprehension of the Plaintiffs is neither trivial nor imaginary.

On that basis, the suit was decreed. It is true that the Respondents have also dug the well but there is no obstruction or injurious effect on the enjoyment of the lateral rights of the adjecent owner complaining of digging the well by the Respondents. In this case, we have to see whether the action of the Appellant m digging the well adjacent to the property of the Respondents to a depth of 32 feet would cause actionable nuisance resulting substantial injury to the enjoyment of the property by the Respondents. As seen from the evidence on record and the finding based thereon it is an actionable nuisance and substantial injury is likely to arise. this is A finding, of fact based on appreciation of evidence and, therefore, I do not find any justification warranting interference in this second appeal and the second appeal is accordingly dismissed but in the circumstances each party is directed to bear its own costs.

However, in order that the property may be enjoyed, the decree of the court below is modified as follows:

The Appellant shall close the well dug by her, but it does not preclude her either to draw from that closed well the water through the pipe put by her or to dig a bore well and fix an engine to draw the water from that bore well as is convenient to her without causing any injurious effect on the enjoyment of the property by the Respondents.