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2024 Supreme(Online)(ORI) 858
ORISSA HIGH COURT
A. C. Behera, J
Natabar Chakra and others – Appellant
Versus
Prafulla Kumar Mishra and others – Respondent
S.A. No.69 of 1995
For the Appellants/Petitioners:Mr. R.K. Mohanty, Sr. Advocate, Ms. S. Mohanty, Advocate
For the Respondents:Mr. Dillip Kumar Mishra, Advocate, Mr. B.K. Nayak, Advocate
The court affirmed that no easementary right exists for discharging waste over another's property, recognizing the priority of life and health.
Headnote:Statute Analysis: The appeal was made under Section 100 of the Code of Civil Procedure, 1908. Facts of the Case: The appellants, as defendants, were challenged over the illegal discharge of water into the plaintiffs' drain, causing nuisance and damage.
Findings of Court:
The court found in favor of the plaintiffs, confirming the lower courts' decisions.
Issues: The court framed questions regarding evidence non-consideration and easement rights.
Ratio Decidendi: It's determined that an easementary right cannot arise from causing a nuisance.
Result: The 2nd appeal filed by the appellants is dismissed on contest against the respondents, but without cost.
| Table of Content |
|---|
| 1. overview of plaintiff-defendant relations and claims. (Para 2 , 3 , 5 , 9) |
| 2. issues regarding consideration of evidence in court. (Para 12 , 14 , 15) |
| 3. determination of easement rights and nuisance law. (Para 16 , 18) |
JUDGMENT
Date of hearing : 13.02.2024 / date of judgment :21.03.2024
A.C. Behera, J.
The 2nd appeal has been preferred against the confirming judgment.
2. The appellants of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.07 of 1984 and they were the appellants before the 1st appellate court in the 1st appeal vide T.A. No.40 of 1989.
3. The respondents of this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.07 of 1984 and they were the respondents before the 1st appellate court in the 1st appeal vide T.A. No.40 of 1989.
4. The suit of the plaintiffs vide T.S. No.07 of 1984 was a suit for mandatory injunction and damages.
5. The case of the plaintiffs before the trial court in the suit vide T.S. No.07 of 1984 was that, they(plaintiffs) are both the husband and wife respectively. The defendant no.1 is the father of the defendant nos.2 to 4. The plaintiffs and the defendants are the adjacent neighbour of each other.
According to the plaintiffs, they made a drain on their own land at the Western side of their house in order to discharge the water of their house, but, since the year 1975, the defendants started discharging the foul water of their house into the said train by making some holes on their Eastern side compound wall, as a result of which, unhygienic atmosphere created for the plaintiffs family. The defendants also demolished a portion of the compound wall of their house 06.06.1980, thereby exposing the front part of the house of the plaintiffs to the trespassers, thieves, stray dogs, cattle etc. The defendants deliberately discharged their roof water towards the tin shed of the plaintiffs causing damage to the same. In spite of repeated requests and notices by the plaintiffs to the defendants to close the holes of their compound wall and to stop the discharge of foul water into the drain of the plaintiffs, the defendants did not pay any heed to the same. For which, without getting any way, the plaintiffs approached the civil court by filing the suit vide T.S. No.07 of 1984 against the defendants praying for a decree of mandatory injunction against the defendants in order to direct the defendants to close the holes on their compound wall and not to discharge any water of their house into the drain of the plaintiffs and not to trespass into area of the plaintiffs and not to discharge the roof water to the tin shed of the plaintiffs and to direct the defendants to pay damages along with pendente lite and future interest on the claimed damages.
6. Having been noticed from the trial court in the suit vide T.S. No.07 of 1984, the defendants contested the same by filing their joint written statement after taking their stands therein that, the drain is situated on their own land and the said drain was constructed by them (defendants) much before the starting of the construction of the house by the plaintiffs. They(defendants) have been discharging the water of their house into their drain since 1962. They (defendants) denied the allegations alleged by the plaintiffs that, they demolished their compound wall and kept open to the front portion of the house of the plaintiffs. Their roof water has been discharging to the East since the construction of their house, but, the plaintiffs have constructed their tin shed recently in the year 1980 with an ulterior motive to put a cement motor on the edge of the upper portion of the tin shed. As such, the defendants claimed that, the drain belong to them and they have not caused any damage or inconvenience to the plaintiffs. For which, the suit of the plaintiff is liable to be dismissed.
7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eleven numbers of
