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HIGH COURT OF ORISSA
S. Acharya, J.
GANESH PANIGRAHI - Appellant
Versus
JURA SAHU AND ORS. - Respondent
Second Appeal 335 Of 1969
Decided On : JANUARY 19, 1973
INJUNCTION - SPECIFIC RELIEF ACT - SECTION 38 - COURT'S DISCRETION - PLAINTIFF'S UNFAIR CONDUCT - NO INJUNCTION.
Fact of the Case:
Plaintiff sued to restrain defendants from digging a nala on his land and damaging it. The trial court and the appellate court found that the plaintiff had recently raised the level of a portion of his land, thereby obstructing the natural flow of water from the defendant's land through the plaintiff's land. The courts dismissed the plaintiff's suit.
Finding of the Court:
The court held that the plaintiff was not entitled to an injunction because he had not come to court with 'clean hands'. The plaintiff had acted unfairly and unequitably by raising the level of his land and obstructing the natural flow of water. The court also held that the plaintiff was not entitled to an injunction because the owner of the lower land is bound to accept water discharged in the ordinary and in the matter of course of affair from the higher land.
Issues: Whether the plaintiff was entitled to an injunction to restrain the defendants from digging a nala on his land and damaging it.
Ratio Decidendi: The court held that the plaintiff was not entitled to an injunction because he had not come to court with 'clean hands'. The plaintiff had acted unfairly and unequitably by raising the level of his land and obstructing the natural flow of water. The court also held that the plaintiff was not entitled to an injunction because the owner of the lower land is bound to accept water discharged in the ordinary and in the matter of course of affair from the higher land.
Final Decision: The court dismissed the plaintiff's appeal.
ACHARYA, J.
( 1 ) THE unsuccessful plaintiff in both the courts below has preferred this second appeal against the decision passed by the Additional Subordinate Judge, berhampur in Title Appeal No. 14 of 1969.
( 2 ) THE plaintiff's case, in brief, is that he owns and possesses plot Nos. 775 and 774 as specifically described in the plaint. To the adjacent north of the said two plots, the defendants have their plot No. 690 at a lower level than the above mentioned two suit plots. The surplus water from plot No. 690 was being discharged from time immemorial through plot Nos. 742, 745 and other plots downwards belonging to other persons. The defendants being in inimical terms with the plaintiff and in order to damage the plaintiff's land and to have a shortcut way for the surplus water on plot No. 690, forcibly dug a Nala on the above-mentioned two suits plots thus causing wrongful loss and damage to the plaintiff. The plaintiff tried to obstruct the above high-handed action of the defendants, but failed in his attempt as the defendants are influential persons and had the support of the police and other local authorities.
( 3 ) DEFENDANT Nos. 4 and 5 did not contest the suit and were set ex parte. The plea of defendant Nos. 1 to 3 is that they have customary and easementary right of taking water through the above-mentioned suit plots. According to them plot No. 690 stands at a higher level than its adjacent plot No. 775 belonging to the plaintiff, and since time immemorial the surplus water from plot No. 690 used to naturally flow out through plot No. 775, and thereafter through other plots in the locality. It is averred that the plaintiff being a rich man wanted to purchase the said plot No. 690, but as he failed in his attempt, he recently raised the level of a portion of plot No. 775 adjacent to plot No. 690 by putting earth on the same, thereby causing obstruction to the natural flow of the surplus water from plot No. 690 through plot No. 775, with the ulterior motive of damaging the defendant's aforesaid plot No. 690 and making it unfit for cultivation. Soon after raising the level of plot No. 775 as aforesaid, the plaintiff instituted this suit to harass the defendants. They have specifically asserted that unless the aforesaid portion of plot No. 775 recently raised by the plaintiff is not suitably removed in order to allow the surplus water from plot No. 690 to flow out through plot No. 775 as before, plot No. 690 would become unfit and useless for all intents and purposes.
( 4 ) UNDISPUTEDLY plot No. 690 belonging to the defendants is to the adjacent north of plot No. 775 belonging to the plaintiff.
( 5 ) THE Trial Court on an elaborate and thorough appreciation of the evidence on record finds that plot No. 690 is at a higher level than plot No. 775. It also finds that the plaintiff recently by putting earth raised the level of a portion of his plot no. 775 to the extent of about 100 to 120 feet in breadth, adjacent to and all through the southern boundary of plot No. 690. It also finds that the lands adjoining plot No. 690 on its east, north and west are all at a higher level than plot no. 690, but the lands to its south, excepting the elevated portion of plot No. 775, are at a lower level. It has categorically discarded the plaintiff's case that the water from plot No. 690 flows out on its northeast corner through the lands of other persons. It has arrived at a definite conclusion that because of the topography of the land and the situation of the aforesaid two plots the surplus water on plot No. 690 could only be discharged through plot No. 775 and not through any other plot.
( 6 ) THE appellate court on a fresh reappraisal of the evidence on record in a convincing manner has confirmed the aforesaid findings of fact arrived at by the trial court.
( 7 ) THE two courts in arriving at the aforesaid findings have taken into consideration certain admissions made by the plaintiff's witnesses. The plaintiff himself in his
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