THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.192 OF 2010 JUDGMENT: The appellant/defendant preferred this second appeal against the judgment and decree dated 18.03.2009 passed by the Senior Civil Judge, Pithapuram, in A.S.No.7 of 2007 allowing the appeal filed by the respondents/plaintiffs by decreeing the suit filed by them for permanent injunction setting side the dismissal order passed by the Junior Civil Judge, Pithapuram in O.S.No.143 of 1999 dated 22.02.2007. The facts, which gave raise for filing of the second appeal, are that the plaintiffs, who are the owners of house bearing Nos.19-51, 19- 41 to the west of ABCD lane situated at Gollaprolu Village, filed the above suit alleging that the defendant, who is having house property towards Southern side of their house, is not having any right to discharge the sullage water in ABCD lane, and there is no out let into lane at any point of time. The ABCD lane was formed long back running from North to South with houses adjoining to its either side. The lane is also from North to South. At the tail end point of the lane on its Northern side, nearly 2 to 3 feet from its starting point, there is a drain adjoining to the house including ABCD lane to its northern side into which the plaintiffs and other house owners on the eastern side of the lane, are discharging the drain water. During the summer in 1999, the defendant after renovating the house property, a portion of the house has been totally demolished and the mud of the removed construction and the debris have been dumped in ABCD lane to raise the lie of the lane to the door steps of plaintiffs as well as the door steps of Surnidi Satyanarayana, bearing No.19-50, up to 1/2 feet. The defendant also put up a septic tank in his premises and opened the out let into ABCD lane at a point marked in the plaint plan. Though the elders admonished the defendant to restore the level, but he did not heed to the request, and straight away started constructing a drain in a pucca manner to discharge water from ‘X’ marked portion in the plaint plan up to the drain adjoining to North to the ABCD lane. He high handedly built a concrete drain up to the house of Redla Kasulamma, which was marked red in the plaint plan. Since the defendant is not entitled to construct any drain in ABCD lane, the above suit was filed for mandatory injunction for removing the unauthorized construction of drain, and for costs. The defendant filed written statement denying the plaint allegations stating that the ABCD lane shown in the plaint sketch belongs to Gram Panchayat; that the lie of land is not uniform throughout the lane, which is haphazard way; that to the East of the ABCD lane, there is the house of the defendant’s mother starting from the point AB towards North, purchased by her from her vendors, and to its North there is house of Yedla Seshagirirao, who purchased the land from Surnidi people through registered sale deed, and to its North there is house of Raparthi Ramayya, and its North house of Redla Kasulamma, W/o. Veeraswamy; that the rain water and sullage water from those houses was being drained off into ABCD lane towards West of the houses, since time immemorial. Late Redla Kasulamma, W/o. Veeraswamy, made necessary changes in her house to drain the sullage water from her house towards North by constructing a drain to allow free flow of water from her house towards North into Panchayathi drain situated towards North of her house and the lane ABCD and the houses of plaintiffs herein; that the drain is having its lie from East to West; that to the east of the defendant’s mother house and site of Redla Seshagirirao, Raparthi Ramayya, Redla Kasulamma, there are houses. This defendant’s father Redla Bhulokam, Surnidi Paparao and Kokkala Prabhakara Rao respectively were discharging the rain water and sullage water from their houses towards East into the Panchayat drain which is having its lie from North to South, but it will not join the Panchayat drain, which is situated towards North of the lane ABCD; that the houses of plaintiffs and Redla Kasulamma having its lie East to West. The mode of discharging water from the above owners is from more than 100 years and as such the defendant’s mother, Redla Seshagirirao, Raparthi Ramarao, Redla Kasulamma were having no right to discharge the sullage water, septic tank water and drain water towards East, since the houses of others are situated on the East and they have to discharge such water towards West of lane into the ABCD lane. In the partition effected between the defendant and his brothers, the upstairs tiled house belonging to father of the defendant and house belonging to mother, situated towards West, were allotted to the share of the defendant alone under the registered partition deed. As such the defendant has become the owner of the said two houses. In the year 1996 the defendant applied to Grampanchayat for renovation of his mother’s house, which was allotted to his share, and soon after the approval of the Grampanchayat as per the approved plan, the defendant demolished pre-existing house of his mother and constructed slabbed upstairs house. Therefore, he denied his making constructions in the year 1999. He also denied that the septic tank was at a height of about more than three feet from ground level of ABCD lane, the outlet of the said tank, the ABCD lane and the old place. He further denied that septic tank water was being drained into ABCD lane because of which foul smell was emanating and thereby the lane was dumped with bad water. The ‘X’ marked vent was there as it was previously and it was not newly opened. The ABCD lane was belonging to the Panchayat, and the plaintiffs, in collusion with his father, constructed septic latrine tank to the East of their compound wall just West to the ABCD lane. The plaintiffs have placed gas exhausting pipe of the said tank to the East of their compound wall having its open into ABCD lane. On the other end of the lane ABCD to its West just by the side of the house bearing Door Nos.19-49, 19-50, they constructed a drain in the lane to its West with cement planks. The plaintiffs also introduced a pipe line from their houses by taking precautions to have their levels for free flow of rain, sullage and septic tank water to be drained off from South to North into Panchayat drain existing to the North of their houses. The Panchayat drain was constructed by the authorities after taking necessary precautions in order to allow free flow of water from the houses situated towards East of the lane ABCD and the said drain was proposed after taking necessary precautions to maintain the level of drain for free flow of such water. The suit is bad for non-joinder and mis-joinder of necessary parties. On the above pleadings, the lower Court framed the following issues for trial. 1. Whether the defendant has any right to discharge his sullage water into ABCD lane and therefrom towards North? 2. Whether the defendant opened the ‘X’ marked vent to the West of his house for the first time 1999 to discharge his sullage water into the ABCD lane? 3. Whether the defendant has to discharge his sullage water to the Eastern drain as per custom? 4. Whether the discharge of sullage water by the defendant into the ABCD lane causes inconvenience or nuisance to the plaintiffs? 5. Whether the plaintiffs are entitled to permanent injunction as prayed for? 6. Whether the plaintiffs are entitled for mandatory injunction as prayed for? 7. To what relief? On behalf of the plaintiffs PWs.1 to 3 were examined and Exs.A.1 and A.2 were marked. On behalf of the defendant, DW.1 was examined and Exs.B.1 to B.6 were marked. The lower Court, on appreciation of the oral and documentary evidence adduced before it, dismissed the suit answering the issues 1 to 6 against the plaintiff. Aggrieved thereby the plaintiffs carried the matter in appeal. The lower appellate Court, after taking into consideration the rival pleadings, framed the following issues for consideration. 1. Whether the defendant is having right to discharge the water into Eastern side drain only and not into ABCD lane? 2. Whether that practicing of discharging of water towards East does not prohibit the defendant to discharge the water towards West? 3. Whether the plaintiffs are entitled for permanent injunction as well as mandatory injunction as prayed for? 4. Whether the suit is bad for non-joinder of necessary parties? 5. To what relief? After considering the points 1 to 3 together, the lower appellate court observed that PW.2, who is one of the mediators and who is a third party to the suit, deposed that he acted as elder along with one Ranga Babu, Bhaskararao, Veera Venkata Satyanarayana, to resolve the dispute between the plaintiffs and defendant. He inspected the lane and admonished the defendant as the construction was against the lie of lane. DW.1 constructed concrete drain up to house of Redla Kasulamma, and if it is continued, it will cause inconvenience to the plaintiffs and other residents. Redla Kasulamma, who is also a third party to the suit, was examined herself as DW.3. She stated that the lie of lane is from West to East. To the West of her house, the house of Raparthi Ramayya, the house of the defendant, and a lane are there. The Western side houses belong to plaintiffs, one Surneedi Ramarao and others. She categorically deposed that she is discharging water into the drain to the North of her house and Raparthi Ramayya never discharged Sullage Water into the disputed lane. The Commissioner, who visited the suit schedule property, filed a report, which was not marked by the lower appellate Court, and the said report also supports the evidence of the plaintiffs. As seen from the report it is clear that the existing practice of the defendant to discharge the water is from West to East within his compound and not towards East into the ABCD lane. Admittedly, the defendant is discharging the water into the Eastern drain. The defendant himself has admitted that the existing practice of discharging water from West to East in his compound was for over 50 years. But in the cross- examination of DW.1 from the plaintiffs side, it was elicited that ‘X’ marked out let shown in the plaint sketch belongs to the brother of the defendant, namely, Seshagiri Rao. The red marked drain started at the houe of Seshagiri Rao. The septic tank was constructed by him with the permission of his brother and his brother was not residing in the said hosue as he was employed in Visakhapatnam. He also admitted that the septic tank is one foot from surface level of second house compound, and the same was constructed in the year 1996, and that there was an out let to the said septic tank. He further admitted that the lie of the compound was from West to East. The house bearing D.No.20-129 belongs to the father of the defendant and devolved on him in the year 1973 from his mother. The lower appellate Court observed that the defendant himself deposed that he commenced the work on his personal, but how DW.1 has got the financial assistance from the MLA funds was not explained. Further the nature of work entertained by DW.1 is nothing but a public work, and no resident of that locality has given any permission to the defendant for his work in the ABCD lane and there is no tenable evidence on record to show that the Gram Panchayat is the necessary party to the suit. Observing so, the lower appellate Court reversed the finding of the trial Court by setting aside the judgment and decree in the suit. Sri Koka Raghava Rao, learned counsel for the appellant contended that since ABCD lane belongs to the Gram Panchayat, the Gram Panchayat is necessary and proper party as the construction was undertaken on its behalf. To buttress the said submission, he placed reliance on Ex.B.5. However, Ex.B.5 clearly discloses that it is the defendant/appellant, who made an application seeking permission to construct the drainage lane connecting through his house to the main drain, and the same was accepted by the Grampanchayat. Since the construction work was not undertaken on behalf of the Gram Panchayat, the lower appellate Court rightly held that the Gram Panchayat is not a necessary or proper party to the suit. It is the defendant who wanted to pull off the lane and change the lie and the course of drain water, which earlier flows from West to East. After changing the lie they want to connect it to the ABCD lane by raising the height of the lane, detrimental to the interest of the plaintiffs. By changing the level, the water of the plaintiffs will be stagnated and if the out let of septic tank is left into the said ABCD lane, it will cause nuisance to the plaintiffs as it emanates bad foul smell. Therefore, the findings of facts arrived at by the lower appellate Court does not give rise to any interference by this Court. I see no question of law much less substantial question of law to admit the second appeal. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. ____________________ (A. GOPAL REDDY, J.) 4th June, 2010 Js.