1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 675 of 2006 (Smt. Parbatabai w/o Mahadeo Chetule & 4 ors. Vs. Smt. Ashalata wd/o Rushiji Padole & 10 ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 25 th June, 2008 Heard Shri Motghare for the appellants. The appellants are the original defendants. A suit was instituted by certain residents of the locality against the defendants on the basis of an easementary right of necessity on a pleading that the excess rain water falling on their properties passes through a drainage (Pat) right from the old Lakhani- Lakhori road to the western side of their houses upto new Lakhani-Lakhori road and due to the obstructions of the said drainage, water had entered into their houses and caused damages to their houses. 2 The defendants denied the claim of the plaintiffs and pleaded that the suit had been instituted by the plaintiffs to grab the open land of the defendants and hence, they sought for the dismissal of the suit. The trial Court, after considering the evidence on record, held that the plaintiffs had not succeeded in proving their ownerships over the suit plot. The Court further held that the plaintiffs further failed in proving that due to the construction made by the defendants, the flow of water is obstructed. The Court, therefore, dismissed the suit filed by the plaintiffs. In an appeal filed by the plaintiffs, the judgment passed by the trial Court was reversed and the first appellate Court held that the plaintiffs succeeded in proving that there was a drainage (Pat) for passage of excess rain water from old Lakhani-Lakhori road to new Lakhani-Lakhori road. While recording the aforesaid findings, the first appellate Court considered the oral as well as the documentary evidence 3 tendered by the parties on record. The appellate Court considered the admission of the defendants in their cross-examination which proved the plaintiffs' case that there was a drainage for flowing of excess rain water from old Lakhani-Lakhori road to new Lakhani- Lakhori road. The first appellate Court further held, and rightly so, that the trial Court erred in considering the issue as to whether the plaintiffs were the owners of the suit land i.e. drainage (Pat). The plaintiffs had not sought a declaration that they were the owners of the land in which the drainage was located. The plaintiffs had merely sought a decree on the basis of the easementary right of necessity. Since the findings recorded by the first appellate Court are based on a proper appreciation of the material evidence on record, they cannot be interfered with in this second appeal. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP