Chunni Lal and Another vs Jemna Lal and Another

Navin Chandra Sharma, J.—I have heard the learned Counsel for the parties in this appeal.

It has been found by both the courts below that the ''Pol'' and the ''Chowk'' in question belongs to the plaintiffs.

This finding of fact cannot be disturbed in second appeal.

The only question is whether the decree for mandatory and permanent injunction granted by the courts below should be sustained or only reasonable compensation be awarded to the plaintiff. What the defendants Nos. 5 and 6 have done is only that they have taken a water connection from the Public Health Engineering Department at Chittorgarh and in connection with that, water pipe line has been laid though the Pol and the Chowk in question in order that the same may reach the house of defendants Nos. 5 and 6. The learned Counsel for the plaintiffs-respondents has referred to a decision of a learned Single Judge of this court in Ramnarain Lal v. Gordhan Lal reported in 1959 RLW 307 in order to contained that the grant of permanent and mandatory injunction in the circumstances was quite justified. In Ramnarainlal''s case the facts we that the defendant had certain rooms in the same Haveli at the plaintiffs and the Pol belonged to the plaintiffs and the defendant had only a right of passage in it. It was alleged by the plaintiffs that the defendant wanted to fix underground cable in the Pol and for that purpose to dismantle come portion of the Pol and make alterations in the same. The point for consideration thus was whether the defendant can do some thing in the Pol a so as to break it some place and then repair it. It was urged on behalf of plaintiffs that the defendant was in a position to obtain, electric supply without having to use the plaintiff''s (Pole. It was held that in trying to break open the Pol for the purpose of the laying down a line, the defendant was trying to make an excessive user of the Pol and interfere with the proprietary rights of the plaintiffs.

It may be mentioned that while taking the water pipe line, the defendants have not and are not going to any portion of the Pol or to make any alterations in it. There is no question of breaking open the Pol involved in the instant case. The water pipe line goes adjoining the edge of Pol and there is no other way for the water pipe line to go. In the circumstances, I am of the view that monetary compensation to the plaintiffs would give them adequate relief and the courts below were not justified in granting the decree of permanent and mandatory injunction.

I partly allow this appeal and modify the decree of the civil Judge, Chittorgarh dated July 15, 1977 in this manner that the defendants Nos. 5 and 6 (appellants) will pay an amount of Rs. 250/- as compensation to the plaintiff for using the Pol and chowk for laying down water pipe leading to their house It is also decreed that in case the water pipe line gives way or there is leakage of water through the Pipe line, the defendants Nos. 5 and 6 will immediate repair the pipe line and prevent the leakage of water through the pipe line. The plaintiff respondents will get costs of this appeal.