KADARBHAI MAHOMADBHAI Vs. HARIBHAI RANCHHODBHAI DESAI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned Extra Assistant Judge Baroda confirming the judgment and decree passed by the learned 3rd Joint Civil Judge Junior Division Baroda in regular civil suit No. 1489 of 1962 with the modification that it was open to the defendants to make any construction or to utilise their land in any manner they may like if they can adopt measures by which they can utilise the land without causing injury to the plaintiffs land.

(2.) The facts giving rise to this appeal briefly stated are as under :- One Haribhai Ranchhodbhai Desai filed a suit against the present appellants alleging that he was the owner of the property described in details in para 1 of the plaint. According to him there was a ravine to the west and north of his property; that in 1959 the said ravine was filled up by the defendants viz. the present appellants as a result the rain water could not pass through the ravine and began to overflow through the Pratap Ganj area. The plaintiff thereupon made an application to the Baroda Borough Municipality and the Municipality got the rubbish removed from the ravine as a result the water began to flow through the ravine as before. According to the plaintiff again in 1962 October the defendants began to fill up the said ravine with burnt coal ash and about half the ravine was already filled in with the result that there was danger of the course of natural water channel passing through the ravine being changed resulting in his land being washed away. He further contended that if the said ravine was filled up the water would overflow his land and there was danger of the building constructed by him in the land falling down as a result of the land being over-flooded resulting in damage to the tune of several thousands of rupees. According to the plaintiff this ravine was a public ravine and that the defendants had no right to prevent the water flowing through the said ravine. The plaintiff thereupon filed the suit and prayed for a mandatory injunction directing the defendants to remove the rubbish with which the said ravine was filled up and for a permanent injunction restraining them from not filling up the said ravine in future so as to obstruct the natural flow of water in the monsoon. The defendants filed their written statement wherein they denied that it was a public ravine. According to them it was not a big ravine but it was a pit situated in their own land bearing survey number 931 which was of their exclusive ownership. They denied that in 1959 they had filled up the ravine as stated in the plaint. They denied that by their act there was any danger to the property of the plaintiff as a result of his land being flooded as stated in the plaint. According to the defendants the suit as framed was not maintainable and that it was barred by limitation. From the pleadings of the parties the learned trial Judge framed the following issues :-

(3.) Mr. N. R. Oza learned Advocate for the appellants raised the following contentions before me :-