IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.1 of 2022 P Date of Decision: 7th July, 2023.

Smt. Mukhtyari Devi & Ors. .....Petitioners.

Versus Khem Chand …..Respondent. Coram f The Hon’ble Mr. Justice Sandeep Sharmao, Judge.

Whether approved for reporting?1 For the Petitioners: Mr. Vikrant Thakur and Mr. Vishal Singh Thakur, Advocates.

For the Respondent: Mr.r H.S. Rangra, Advocate.

Sandeep Sharma, Judge (oral).

Instant petition filed under Article 227 of the Constitution of India, lays challenge to judgment dated 3.9.2021, passed by learned Additiona l District Judge, Sarkaghat, District Mandi, H.P, in Civil Misc. Appeal No.3 of 2020, affirming order dated 7.12.2019 passed by learned Civil Judge (Sr. Division) Court No.1, Sarkaghat, District Mandi, H.P, iwhereby an application having been filed by the respondent/plaintiff (hereinafter referred to as ‘plaintiff’) restraining the petitioners/defendants (hereinafter referred to as ‘defendants’) from causing nuisance on the suit land by discharging dirty and filthy water towards the house of plaintiff, came to be allowed.

2. Precisely, the facts of the case as emerge from the record are that the plaintiff filed a suit for permanent prohibitory and mandatory

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

injunction restraining the defendants from throwing/discharging dirty/filthy and rainy water towards his house. Apart from above, plaintiff also Psought decree of mandatory injunction directing the defendants to divert the flow of water through sewerage pipes in the land comprised in Khewat No.195/19, khatauni No.343 min/328, khasra No.659, measuring 0-10-00 hectares, situated at village Behar, Illaqua Suranga, Tehsil Sarkaghat, District Mandi, H.P (hereinafter referred to as ‘suit land’). Plaintiff averred that the suit land detailed hereinabove is Abadi Deh upon which, houses of the parties exist. He alleged that he had left space for ingress and egress of his house beneath his ground floor as indicated in the site plan, but defendants are throwing their entire dirty and rainy water on the passage andC as such, nuisance is being caused to him and his family member. He also alleged that earlier the defendants had dug out a pit in their own land adjoining to their bathroom for discharge of dirty and rainy gwater, but now same is being discharged towards the house of the plaintiff, as a consequence of which, there is moisture and seepage of water towards the house of the defendants and house can collapse at any time. Alongwith the aforesaid suit, plaintiff also filed an application under Order 39 Rules 1 and 2 CPC praying therein, ad-interim injunction restraining the defendants from throwing their dirty and rainy water towards passage leading to his house during the pendency of suit. The aforesaid claim set up in the plaint as well as application for stay filed by the plaintiff came to be refuted by defendants by way of filing written statement as well as reply to the stay application, wherein they claimed that they had constructed their house in the year 1992 partially and remaining construction waPs done in the year 1997, which is prior to the construction of the house of the plaintiff. The defendants alleged that plaintiff himself damaged the path constructed by the Nagar Panchayat and raised construction in the month of November, 2012 as a result of which, natural flow of water as well as the water of rainy season has been blocked. They alleged that the water earlier used to flow by the side of such path, which exists on khasra No.715 and passes through khasra No.659 and then goes to main ‘nallah’. The defendants alleged that said ‘nallah’ covers the whole dirty water of ward Nos.6 and 7 and water of the house of plaintiff also flows through the said path towardCs ‘nallah’. Defendant further alleged that plaintiff did not allow Nagar Panchayat, to lay down the pipes for discharge of the water and deliberately stopped the natural flow of water of