- (1.) Under challenge is the judgment and decree dated 11.3.1997 passed by Addl. District Judge, Rajgarh in Civil Appeal No. 44/94 (old No. 5/84) whereby the appeal filed by the defendant-respondent (hereafter 'the defendant) has been partly allowed and the judgment and decree dated 1.9.1984 passed by Munsiff Magistrate, Laxmangarh in Civil Suit No. 93/1979 decreeing the suit filed by the plaintiff-appellant (hereafter 'the plaintiff') has been modified restraining the defendant-respondent (hereinafter 'the defendant') from discharging rainwater from the roof on the plaintiff's adjoining land.
(2.) Facts of the case are that plaintiff filed a suit for permanent and mandatory injunction against the defendant stating that land measuring 33 ft x 13 ft shown in red and green colour on the map annexed with the suit, was purchased from the father of defendant by a registered sale deed dated 4.2.1975 and used by making "Kachcha" construction for residential purpose. Subsequently part of the land shown in red colour in the map annexed to the suit was left open. It was submitted that although the un-constructed portion was in the ownership and possession of the plaintiff, in April, 1979, the defendant forcibly raised construction thereon. A complaint made to the concerned Panchayat Samiti was of no avail. The plaintiff further submitted that under the sale deed dated 04.02.1975, it was agreed that drainage water from roof of plaintiff's construction over the land purchased would fall over the land of defendant and yet the defendant was now obstructing the plaintiff's right on that count. In the fact stated and rights asserted the plaintiff prayed that defendant be restrained from obstructing the flow of drainage water from roof of plaintiff's hutment as marked on the map annexed to the plaint as ABCD, the construction by the defendant over the suit land be demolished, his encroachment be directed to be removed and he be restrained by an injunction from interfering with the right, use and enjoyment by the plaintiff's of his suit property land including the suit land.
(3.) The defendant filed a written statement denying the averments made in the suit and contended that the land sold to the plaintiff did not include the suit land which was his own and of which he was rightly in possession. It was denied that any agreement had been entered into with the plaintiff with regard to permitting him to his drain the water from his roof onto the defendant's adjoining land. Finally the defendant stated the suit was barred by limitation and prayed for its dismissal.;