The Municipality must abate nuisances caused by drainage into private properties without specific direction for construction.

1. The suit for mandatory injunction to construct a drainage and for prohibitory injunction not to drain / flow waste water into the property of the plaintiffs was decreed concurrently by the courts. The defendant - Municipality is in Second Appeal.

2. The plaint 'A' and 'B' schedule properties belong to the first and second plaintiff's respectively. They are residing in the buildings in the properties. Each of the properties contain well, which is used by them for their domestic purposes. On the eastern side of the plaint 'A' schedule property is a road. According to the plaintiffs, the defendants started construction of a drainage on the north - eastern side of the road. It was left uncompleted. Consequently, waste water from the drainage is flowing into the plaint schedule properties and causing nuisance, including contamination of the wells. It is accordingly that the suit has been filed for a mandatory injunction to complete construction of the drainage and also for prohibitory injunction not to cause nuisance by flowing water into the plaint schedule properties.

3. The defendants filed written statement contending that, the road on the eastern side of the plaint schedule property is a private road and is not vested in the Municipality. The allegation that nuisance is being caused to the plaintiffs by flowing / draining of waste water into the plaint schedule properties, was denied. It was also contended that the defendant does not have any liability or responsibility to prevent such nuisance, if at all any.

4. The trial court decreed the suit on the following terms:
“In the result, the suit is decreed : -
(1) directing the defendant to complete the construction work of the drainage on the eastern side of the plaint A schedule properties and to let out filthy water through the said drainage within three months from the date of this decree, in default plaintiffs are entitled to get the construction of the drainage completed through the process of the court. In such circumstances, plaintiffs are entitled to realise the cost of the same from the defendant.
(2) defendant Municipality is restrained by way of a permanent prohibitory injunction from letting out filthy water to the plaint schedule properties and causing nuisance to the plaintiffs.”
The decree was affirmed by the first appellate Court.

5. Heard learned counsel on either side on the following substantial questions of law: -
(i) Is the finding of the courts that nuisance is being caused to the plaintiffs consequent on the flow of drainage water into the plaint schedule property, based on materials ?
(ii) Were the courts right in having directed the defendant by a decree of mandatory injunction to construct drainage on the eastern side of the plaint 'A' schedule property ?

6. Though in the written statement it was contended that the road on the eastern side of the plaint schedule properties is not vested in the Municipality, DW1 the Town Planning Inspector has in cross - examination admitted that the said road is vested in the Municipality and that it is borne out from the Road Register maintained in the Municipality.

7. It is not in dispute that the Municipality constructed a drainage on the north - eastern side of the road in question. In fact, DW1 has admitted that the Municipality has constructed the said drainage. Though the plaintiffs allege that the construction is incomplete and that the drainage was to be constructed further towards the south, the same is denied by DW1. According to DW1, the drainage was constructed by the Municipality as per the approved plan.

8. That water from the drainage flows into the plaint schedule properties and is causing nuisance including pollution of the well, is evidenced by Ext.Cl Commissioner's Report and Ext.Cl(a) sketch. The e