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Judgment
79 paragraphs · 2,631 words
DEEPAK GUPTA, J.
| The appellant | The appellant-plaintiff has preferred the present regular secondplaintiff has preferred the present regular secondplaintiff has preferred the present regular second | ||||||
| appeal against the judgment and decree dated 27.05.2011 passed by theagainst the judgment and decree dated 27.05.2011 passed by theagainst the judgment and decree dated 27.05.2011 passed by theagainst the judgment and decree dated 27.05.2011 passed by the | |||||||
| learned Additional District Judge, Karnal, whereby the appeal preferred bylearned Additional District Judge, Karnal, whereby the appeal preferred bylearned Additional District Judge, Karnal, whereby the appeal preferred bylearned Additional District Judge, Karnal, whereby the appeal preferred by | |||||||
| defendant No.1 | defendant No.1-Municipal Committee, Taraori was allowed and the judgment | Municipal Committee, Taraori was allowed and the judgmentMunicipal Committee, Taraori was allowed and the judgment | |||||
| and decree dated 02.08.2008 passed by the leaand decree dated 02.08.2008 passed by the leaand decree dated 02.08.2008 passed by the learned Civil Judge (Junior Division), | rned Civil Judge (Junior Division), | ||||||
| Karnal, decreeing the suit of the plaintiffKarnal, decreeing the suit of the plaintiffKarnal, decreeing the suit of the plaintiffKarnal, decreeing the suit of the plaintiff | for mandatory injunction, wasfor mandatory injunction, wasfor mandatory injunction, wasfor mandatory injunction, was | ||||||
reversed.
Facts
| The plaintiff instituted the suit seeking a decree of mandatoryThe plaintiff instituted the suit seeking a decree of mandatoryThe plaintiff instituted the suit seeking a decree of mandatoryThe plaintiff instituted the suit seeking a decree of mandatory | |||||
| injunction directing the defendants to remove a urinal construinjunction directing the defendants to remove a urinal construinjunction directing the defendants to remove a urinal constructed adjacent to | cted adjacent to | ||||
| the southern wall of his house. The plaintiff claimed ownership and possessionthe southern wall of his house. The plaintiff claimed ownership and possessionthe southern wall of his house. The plaintiff claimed ownership and possessionthe southern wall of his house. The plaintiff claimed ownership and possession | |||||
| of house No.312, situated at Taraori, and pleaded that between his house andof house No.312, situated at Taraori, and pleaded that between his house andof house No.312, situated at Taraori, and pleaded that between his house andof house No.312, situated at Taraori, and pleaded that between his house and | |||||
| the shops situated on the southern side there existed a strip measuring about 2the shops situated on the southern side there existed a strip measuring about 2the shops situated on the southern side there existed a strip measuring about 2the shops situated on the southern side there existed a strip measuring about 2 | |||||
| feet 6 inches, which had been left by the adjoining owners for drainage oft 6 inches, which had been left by the adjoining owners for drainage oft 6 inches, which had been left by the adjoining owners for drainage oft 6 inches, which had been left by the adjoining owners for drainage of | |||||
| rainwater, waste water and ventilation. The strip was stated to have beenrainwater, waste water and ventilation. The strip was stated to have beenrainwater, waste water and ventilation. The strip was stated to have beenrainwater, waste water and ventilation. The strip was stated to have been | |||||
| covered by iron gates and used occasionally for cleaning.covered by iron gates and used occasionally for cleaning.covered by iron gates and used occasionally for cleaning. | |||||
| The grievance of the plaintiff was that defendanThe grievance of the plaintiff was that defendan | The grievance of the plaintiff was that defendants No.2 to 4, | ts No.2 to 4, | ||||
| allegedlyallegedlyallegedly ininin | connivanceconnivanceconnivance withwithwith defendantdefendantdefendant | No.1No.1 | No.1-MunicipalMunicipal Committee,Committee, | hadhad | ||
| constructed a urinal in the said strip adjacent to the southern wall of his houseconstructed a urinal in the said strip adjacent to the southern wall of his houseconstructed a urinal in the said strip adjacent to the southern wall of his houseconstructed a urinal in the said strip adjacent to the southern wall of his house | ||||||
| by breaking the locks of the iron gate on 24.11.2004. According to the plaintiff,by breaking the locks of the iron gate on 24.11.2004. According to the plaintiff,by breaking the locks of the iron gate on 24.11.2004. According to the plaintiff,by breaking the locks of the iron gate on 24.11.2004. According to the plaintiff, | ||||||
| the urinal was unhygienic and constituted a source of nuisance to him.l was unhygienic and constituted a source of nuisance to him.l was unhygienic and constituted a source of nuisance to him. | ||||||
| The defendants contested the suit. Defendant No.1 pleaded thatThe defendants contested the suit. Defendant No.1 pleaded thatThe defendants contested the suit. Defendant No.1 pleaded thatThe defendants contested the suit. Defendant No.1 pleaded that | |||||||
| the strip was about four feet wide and constituted athe strip was about four feet wide and constituted athe strip was about four feet wide and constituted a | , used for drainage, used for drainage | ||||||
| of rainwater and other water from the houses andof rainwater and other water from the houses andof rainwater and other water from the houses and shops. It was asserted that | shops. It was asserted that | ||||||
| the strip belonged to the Municipal Committee. The construction of the urinalthe strip belonged to the Municipal Committee. The construction of the urinalthe strip belonged to the Municipal Committee. The construction of the urinalthe strip belonged to the Municipal Committee. The construction of the urinal | |||||||
| in 2004 was denied and it was pleaded that the urinal had been constructed inin 2004 was denied and it was pleaded that the urinal had been constructed inin 2004 was denied and it was pleaded that the urinal had been constructed inin 2004 was denied and it was pleaded that the urinal had been constructed in | |||||||
| 1997-98 for public use and was regularly cleaned by a98 for public use and was regularly cleaned by a98 for public use and was regularly cleaned by a | employed | loyed | |||||
| by the Municipal Committee.by the Municipal Committee. | |||||||
| On the pleadings of the parties, the trial Court framed, inter alia,On the pleadings of the parties, the trial Court framed, inter alia,On the pleadings of the parties, the trial Court framed, inter alia,On the pleadings of the parties, the trial Court framed, inter alia, | |||
| the following material issues:the following material issues: |
(i)Whether the plaintiff was owner in possession of the property in dispute?Whether the plaintiff was owner in possession of the property in dispute?Whether the plaintiff was owner in possession of the property in dispute?Whether the plaintiff was owner in possession of the property in dispute?
(ii)Whether existence of the urinal cWhether existence of the urinal constituted nuisance for the plaintiff andonstituted nuisance for the plaintiff andonstituted nuisance for the plaintiff and others?
(iii)Whether the suit was not maintainable in its present form?Whether the suit was not maintainable in its present form?Whether the suit was not maintainable in its present form?
(iv)Whether the plaintiff had no locus standi or cause of action?Whether the plaintiff had no locus standi or cause of action?Whether the plaintiff had no locus standi or cause of action?
| Findings of Courts Below:Findings of Courts Below: | Findings of Courts Below:Findings of Courts Below: | |||||||
|---|---|---|---|---|---|---|---|---|
| The trial Court recorded findings in favouThe trial Court recorded findings in favou | The trial Court recorded findings in favour of the plaintiff and | r of the plaintiff and | ||||||
| decreed the suit.In arriving at its conclusion, the learned trial Court placeddecreed the suit.In arriving at its conclusion, the learned trial Court placeddecreed the suit.In arriving at its conclusion, the learned trial Court placeddecreed the suit.In arriving at its conclusion, the learned trial Court placed | ||||||||
| reliance upon the site plans Ex.Preliance upon the site plans Ex.P-1 and Ex.D- | -1, the evidence of the plaintiff and1, the evidence of the plaintiff and | |||||||
| his witnesses and the failure of the defendants to produce documentaryhis witnesses and the failure of the defendants to produce documentaryhis witnesses and the failure of the defendants to produce documentaryhis witnesses and the failure of the defendants to produce documentary | ||||||||
| evidence establishing their ownership over the strip. It noticed that the passagevidence establishing their ownership over the strip. It noticed that the passagevidence establishing their ownership over the strip. It noticed that the passagevidence establishing their ownership over the strip. It noticed that the passage | ||||||||
| was being used for drainage and that portions of the foundations of thewas being used for drainage and that portions of the foundations of thewas being used for drainage and that portions of the foundations of thewas being used for drainage and that portions of the foundations of the | ||||||||
| adjoining properties existed on either side. The trial Court also noticed that theadjoining properties existed on either side. The trial Court also noticed that theadjoining properties existed on either side. The trial Court also noticed that theadjoining properties existed on either side. The trial Court also noticed that the | ||||||||
| defendants had faile | defendants had failed to substantiate by documentary evidence their plea | d to substantiate by documentary evidence their plead to substantiate by documentary evidence their plea | ||||||
| regarding the construction of the urinal in 1997regarding the construction of the urinal in 1997regarding the construction of the urinal in 1997-98. It ultimately concluded that | 98. It ultimately concluded that | |||||||
| the urinal constructed adjacent to the plaintiff's wall constituted nuisance.the urinal constructed adjacent to the plaintiff's wall constituted nuisance.the urinal constructed adjacent to the plaintiff's wall constituted nuisance. | ||||||||
| The first appellate Court, however, revThe first appellate Court, however, rev | The first appellate Court, however, reversed the aforesaid findings. | ersed the aforesaid findings. | |||||
| It held that the plaintiff had failed to establish ownership over theIt held that the plaintiff had failed to establish ownership over theIt held that the plaintiff had failed to establish ownership over the | BadraoBadrao | BadraoBadrao | |||||
| AccordingAccordingAccordingAccording totototo | thethethethe appellateappellateappellateappellate Court,Court,Court,Court, thethethethe | meremeremeremere existenceexistenceexistenceexistence ofofofof ironironironiron gatesgatesgatesgates | orororor | ||||
| foundations on the sides of the strip could not confer ownership upon thefoundations on the sides of the strip could not confer ownership upon thefoundations on the sides of the strip could not confer ownership upon thefoundations on the sides of the strip could not confer ownership upon the | |||||||
| plaintiff. It further held that there was no documentary evidence showing thatntiff. It further held that there was no documentary evidence showing thatntiff. It further held that there was no documentary evidence showing thatntiff. It further held that there was no documentary evidence showing that | |||||||
| the strip had been left by the plaintiff and other shopkeepers. The appellatethe strip had been left by the plaintiff and other shopkeepers. The appellatethe strip had been left by the plaintiff and other shopkeepers. The appellatethe strip had been left by the plaintiff and other shopkeepers. The appellate | |||||||
| Court relied upon the provisions of the Haryana Municipal Act, 1973 and heldCourt relied upon the provisions of the Haryana Municipal Act, 1973 and heldCourt relied upon the provisions of the Haryana Municipal Act, 1973 and heldCourt relied upon the provisions of the Haryana Municipal Act, 1973 and held | |||||||
| that such drains vested in | that such drains vested in the Municipal Committee.the Municipal Committee. | ||||||
| As regards nuisance, the learned first appellate Court held that,As regards nuisance, the learned first appellate Court held that,As regards nuisance, the learned first appellate Court held that,As regards nuisance, the learned first appellate Court held that, | |||||||
| apart from the statements of the plaintiff and PWapart from the statements of the plaintiff and PWapart from the statements of the plaintiff and PW-3 Brij Mohan, there was no | 3 Brij Mohan, there was no | ||||||
| cogent evidence that the urinal was emitting foul smell, was unhygienic or wascogent evidence that the urinal was emitting foul smell, was unhygienic or wascogent evidence that the urinal was emitting foul smell, was unhygienic or wascogent evidence that the urinal was emitting foul smell, was unhygienic or was | |||||||
| not being properly maintained. It also noticed the defendants' plea that thebeing properly maintained. It also noticed the defendants' plea that thebeing properly maintained. It also noticed the defendants' plea that thebeing properly maintained. It also noticed the defendants' plea that the | |||||||
| urinal was being regularly cleaned by aurinal was being regularly cleaned by a | Safai KaramchariSafai Karamchari | of the Municipalof the Municipal | |||||
| Committee.Committee.Committee.Committee. | TheTheTheThe findingsfindingsfindingsfindings ofofofof thethethethe trialtrialtrialtrial | CourtCourtCourtCourt onononon IssuesIssuesIssuesIssues No.1No.1No.1No.1 andandandand 2222 | werewerewerewere | ||||
| accordingly reversed and the suit was diaccordingly reversed and the suit was dismissed. | smissed. | ||||||
Submissions
| Assailing the reversal, l | Assailing the reversal, learned counsel for the appellant has arguedearned counsel for the appellant has arguedearned counsel for the appellant has argued | |||||
| that the first appellate Court committed a serious error in reversing the wellthat the first appellate Court committed a serious error in reversing the wellthat the first appellate Court committed a serious error in reversing the well-that the first appellate Court committed a serious error in reversing the well | ||||||
| reasoned findings of the trial Court. It is submitted that the site plans and thereasoned findings of the trial Court. It is submitted that the site plans and thereasoned findings of the trial Court. It is submitted that the site plans and thereasoned findings of the trial Court. It is submitted that the site plans and the | ||||||
| existence of foundations on both sides clearly established that the strip hadxistence of foundations on both sides clearly established that the strip hadxistence of foundations on both sides clearly established that the strip hadxistence of foundations on both sides clearly established that the strip had | ||||||
| been left by the adjoining owners for drainage purposes and could not bebeen left by the adjoining owners for drainage purposes and could not bebeen left by the adjoining owners for drainage purposes and could not bebeen left by the adjoining owners for drainage purposes and could not be | ||||||
| treated as the exclusive property of the Municipal Committee. It is furthertreated as the exclusive property of the Municipal Committee. It is furthertreated as the exclusive property of the Municipal Committee. It is furthertreated as the exclusive property of the Municipal Committee. It is further | ||||||
| argued that a public urinal im | argued that a public urinal immediately adjoining the residential wall of the | mediately adjoining the residential wall of themediately adjoining the residential wall of the | ||||
| plaintiff, by its very nature and location, constitutes a nuisance and that theplaintiff, by its very nature and location, constitutes a nuisance and that theplaintiff, by its very nature and location, constitutes a nuisance and that theplaintiff, by its very nature and location, constitutes a nuisance and that the | ||||||
| plaintiff was not required to produce evidence of actual foul smell on everyplaintiff was not required to produce evidence of actual foul smell on everyplaintiff was not required to produce evidence of actual foul smell on everyplaintiff was not required to produce evidence of actual foul smell on every | ||||||
occasion.
| Per contraPer contra | , learned counsel represen | , learned counsel representing the respondents supportsting the respondents supports | ||||
| the judgment of the first appellate Court. It is submitted that the plaintiff failedthe judgment of the first appellate Court. It is submitted that the plaintiff failedthe judgment of the first appellate Court. It is submitted that the plaintiff failedthe judgment of the first appellate Court. It is submitted that the plaintiff failed | ||||||
| to establish any title or proprietary right over the strip. It is further submittedto establish any title or proprietary right over the strip. It is further submittedto establish any title or proprietary right over the strip. It is further submittedto establish any title or proprietary right over the strip. It is further submitted | ||||||
| that the urinal was a public utility constructed by the Mthat the urinal was a public utility constructed by the Mthat the urinal was a public utility constructed by the Municipal Committee and | unicipal Committee and | |||||
| waswaswaswas regularlyregularlyregularlyregularly | cleanedcleanedcleanedcleaned andandandand maintained.maintained.maintained.maintained. | TheTheTheThe plaintiff,plaintiff,plaintiff,plaintiff, accordingaccordingaccordingaccording totototo | thethethethe | |||
| respondents, led no independent or scientific evidence to establish that therespondents, led no independent or scientific evidence to establish that therespondents, led no independent or scientific evidence to establish that therespondents, led no independent or scientific evidence to establish that the | ||||||
urinal caused any substantial interference with his use and enjoyment of theurinal caused any substantial interference with his use and enjoyment of theurinal caused any substantial interference with his use and enjoyment of theurinal caused any substantial interference with his use and enjoyment of the property.