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Ganga Bricks Udhyog and ors. Vs. Jai Bhagwan Swarup and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 726 of 1981
Judge
Reported inAIR1982All333
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 1 - Order 39, Rules 1 and 2; Specific Relief Act, 1963 - Sections 38(3)
AppellantGanga Bricks Udhyog and ors.
RespondentJai Bhagwan Swarup and anr.
Appellant AdvocateH.S. Nigam and ;B.D. Agrawal, Advs.
Respondent AdvocateS.P. Srivastava, Adv.
DispositionAppeal partly allowed
Excerpt:
.....1 rule 1 of code of civil procedure, 1908 - suit for injunction restraining defendant from running brick kiln - heat and ash from kiln would destroy grove of fruit bearing trees of appellants - damages under section 38 (3) of specific relief act not sufficient - suit maintainable - intended purchaser of grove can also prosecute suit. - - 1977, 1978 and 1979/1. by the working of the brick kiln the trees of the plaintiff's grove would die and due to the smoke trees will be damaged by the coal dust and the various harmful gases like carbonic acid, sulpher compound, sulpher dioxide etc. under these circumstances it was held that as the plaintiff was realising the damages from other owners, there was no reason why he could not realise damages in the instant case as well. under these..........25lh nov., 1981 issuing a temporary injunction against them restraining them from working their brick kiln till the disposal of the suit.2. the plaintiffs respondents filed a suit for injunction with the allegation that plots nos. 1979/2, area ii biswas, 1980 area 1 bigha 2 biswas and 1982 area 2 bigha 10 biswas constituted a grove of plaintiff no. 1 and his brothers. the plaintiff no. 2 had entered into a registered agreement for purchase of the property aforesaid for a consideration of rupees 1,50,000/-. the aforesaid plots constituted a compact grove where there were 55 trees of mangoes, 69 trees of shisham, one tree of jamuaya and one tree of jamun and one tree of bel. all the trees were fully grown up and the mangoes, jamuniya and jamun were bearing fruits. the.....
Judgment:

K.M. Dayal, J.

1. This First Appeal from order has been filed by the defendants against the order dated 25lh Nov., 1981 issuing a temporary injunction against them restraining them from working their brick kiln till the disposal of the suit.

2. The plaintiffs respondents filed a suit for injunction with the allegation that plots Nos. 1979/2, area II Biswas, 1980 area 1 Bigha 2 Biswas and 1982 area 2 Bigha 10 Biswas constituted a grove of plaintiff No. 1 and his brothers. The plaintiff No. 2 had entered into a registered agreement for purchase of the property aforesaid for a consideration of Rupees 1,50,000/-. The aforesaid plots constituted a compact grove where there were 55 trees of mangoes, 69 trees of shisham, one tree of Jamuaya and one tree of Jamun and one tree of Bel. All the trees were fully grown up and the mangoes, Jamuniya and Jamun were bearing fruits. The defendants-appellants had installed a brick kiln in plots Nos. 1977, 1978 and 1979/1. By the working of the brick kiln the trees of the plaintiff's grove would die and due to the smoke trees will be damaged by the coal dust and the various harmful gases like Carbonic acid, sulpher compound, Sulpher Dioxide etc. The suit was filed for a permanent injunction restraining the defendants from working the brick kiln.

3. A written statement was filed refuting the case of the plaintiffs and further alleging that the defendants' brick kiln was not going to affect the plaintiffs' groves. It was further alleged that the defendants had obtained a licence for working the brick kiln in Oct., 1981 and started constructing the kiln. The plaintiffs knowingly kept quiet and when the brick kiln was to be fired the suit was filed against the defendants. The suit itself has been filed on 12-11-1981. A commission was issued, whose report is on page 21 of the respondents' paper book. It is accompanied by a map on page 24. The court below has considered the various objections and after considering the prima facie case held that the trees of the plaintiffs wore liable to bedamaged by working of the brick kiln and issued the injunction. It may be mentioned that according to the map prepared by the Commissioner, which is not disputed before us, the brick kiln is adjacent to the grove. The trees of the grove are 54, 55 and even 60 feet high and the circumference of the trunks is up to 7' 9':

4. The learned counsel for the appellants has raised two points before us. The first argument of the learned counsel was that it was a case where damages could have been awarded and therefore the suit was not maintainable in view of Sub-section (3) of Section 38 of the Specific Relief Act.

5. The argument of the learned counsel for the appellants was that if the crops or the trees of the plaintiffs are damaged, they can be compensated in terms of money. The learned counsel relied upon a case reported in 1981 AH LJ 183, Hans Rai v. IInd Addl. District Judge, Gorakhpur. In that case the suit for injunction was filed against the brick kiln owner. The plaintiff owned a mango grove. It was found that the brick kiln was on the north of the plaintiff's grove at a distance of 790.' It also came in evidence that the plaintiff was realising yearly damages from the other owners of brick kilns in the locality. Under these circumstances it was held that as the plaintiff was realising the damages from other owners, there was no reason why he could not realise damages in the instant case as well. The brick kiln was not very close to the grove. Expert evidence was produced to prove the extent and type of damage by the working of the brick kiln. As such this court held that damages could be awarded to compensate the plaintiff for his loss and he was not entitled to an injunction. The facts of the present case are, however, quite different. From the map prepared by the Commissioner it is apparent that the brick kiln was in the adjoining plot. The trees are at a distance of about twenty yards from the brick kiln itself. Under the circumstances the working of the brick kiln was not merely to cause some damage to the plaintiffs' grove but it was bound to destroy it altogether. From the working of the brick kiln even the ash and the radiant heat would be sufficient to kill the trees. The fumes and other emissions from the brick kiln were further injurious.Damages could not be awarded forthe loss that would be occasioned by total destruction of the grove of the plaintiffs.

6. The second argument of the learned counsel was that the grove was owned by four other brothers of Jai Bhagwan, plaintiff No. 1. These brothers are Sita Ram, Purshottam Swarup, Prem Sagar and Shiy Charan Prasad. It is argued that Nand Shyam, the plaintiff No. 2 had entered into a registered agreement for purchasing the plot from three of the brothers and he had agreed to purchase the entire plot from Jai Bhagwan and his brothers for Rs. 1,50,000/-. It was argued that Nand Shyam has been prosecuting the case though he had no interest in the property in dispute. In the instant case Jai Bhagwan, who according to the appellants themselves is one of the owners of the grove is the plaintiff, Plaintiff No. 2, Nand Shyam, has entered into a registered agreement for purchase of the grove and has been put into possession under that agreement. Under the circumstances he was very much interested in protecting the grove and the trees planted therein.

7. The counsel for the appellants then vehemently argued that the plaintiffs' interest is secured by the injunction but the loss that is occurring to the defendants by stoppage of their brick kiln has also to be secured. In case the suit is withdrawn or ultimately dismissed and if injunction continues, during the pendency of the suit, the defendants would be put to great loss. This court should pass orders to protect their interest also. The argument appears to be correct. Under these circumslances the plaintiffs should also give security for compensating the loss of the defendants, in the event of failure of their suit.

8. In the result, the appeal is partly allowed. The judgment and order of the court below granting injunction against the appellants, is modified to the extent that the plaintiffs respondents shall within two months give a security for a sum of Rs. 25,000/- to the satisfaction of the trial court for compensating the loss to the defendants in case the suit fails.


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