GAJJA SINGH Vs. MOHINDER SINGH

JUDGEMENT

(1.) THIS Second Appeal is by plaintiff Gajja Singh, whose suit was dismissed by both the Courts below. He filed a suit for grant of permanent injunction restraining Mohinder Singh and others from digging earth from their land just upto the land of the plaintiff. The plaintiff claimed to be owner in cultivating possession of land comprising killa Nos. 4, 5, 6/1 and 7/1 in village Barsalpur, district Ropar. The land of defendant Nos. 2 to 12 adjoins his land. Mohinder Singh defendant No. 1 was running a brick-kiln in killa Nos. 6/2, 15 and 16/1, which are adjoining towards south the fields of the plaintiff. Mohinder Singh had taken the land from defendant Nos. 2 to 12 for the purpose of digging earth for moulding the bricks. The defendants were intending to dig earth upto the depth of 5 to 6 feet, which was likely to cause irreparable loss to the fields of the plaintiff.

(2.) THE defendants contested the suit. Defendant Nos. 2 to 12 claimed to be owners of the adjoining land and having given the same on lease to defendant No. 1, who was to dig earth for manufacturing bricks. The brick-kiln was installed about seven years ago and there was no objection to the installation thereof. The plaintiff was, thus, estopped to object to the working of the same. No damage was caused to the plaintiff's land by the digging of earth. The plaintiff did not disclose the nature of the damage. The defendant, owner of the brick kiln also took land from one Jaimal Singh of village Despura and dug earth upto the last inch. The land of Jaimal Singh aforesaid adjoins the other land of the plaintiff. Defendant No. 1 also contested the suit, inter-alia, alleging that the owners of the adjoining land cannot be restrained from making use of the land in any manner, which suited them. The suit was barred by res judicata.

(3.) THE following issues were framed on the pleadings ;