- (1.)This Regular Second Appeal is directed against the judgment and decree dated 25.09.2012, passed by the learned Additional District Judge, Solan, District Solan, H.P., in Civil Appeal No. 96-S/13 of 2012.
(2.)Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff' for the sake of convenience) has filed a suit for mandatory injunction against the appellants-defendants (hereinafter referred to as 'the defendants' for the sake of convenience). According to the plaintiff, he is owner-in-possession of two storied building existing over land comprised in Khata Khatauni No. 73, 123, Khasra Nos. 485 and 490, situated in Mauza Gahi, Pargna Basal, P.O. Jabli, Tehsil Kasauli, District Solan, H.P. and adjoining to his house is the house of the defendants, situated at the back side of the plaintiff's house. According to the plaintiff, the defendants have constructed a septic tank just next to the back wall of the plaintiff's house and the same is leaking human waste towards the inner side of the plaintiff's house. The defendants have also diverted the waste water of their bath room on the slab of the plaintiff's house. The plaintiffs are forced to live in unhygienic conditions due to foul smell of human waste leaking from the septic tank. The plaintiff has requested the defendants to remove the septic tank and not to throw the waste water of the bathroom on his slab, but in vain. The plaintiff has also approached the Gram Panchayat, Jabli and Pollution Control Board. It is in these circumstances, he has filed the suit for mandatory injunction directing the defendants to remove the septic tank and not to divert the flow of waste water of their bathroom over the slab of the plaintiff's house.
(3.)The suit was contested by the defendants. It is admitted that the house of the defendants is adjoining to the plaintiff's house. It is denied that the defendants have constructed septic tank at the back side of the plaintiff's house. According to the defendants, the plaintiff did not construct back side wall of his house, but the natural wall/land has been used as a wall and there is no gap in between the land and his house. According to them, they have requested the plaintiff to leave the space between his house and the house of the defendants, but the plaintiff did not leave any space. He has damaged the drainage system. It is submitted that the defendants have constructed a pucca septic tank in the year, 1982, which is underground beneath the defendants' house and not adjoining to the plaintiff's house.