-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 115 OF 2011 1. Mr. Raghoba Ganesh Dessai 55 yrs of age, and his wife, 2. Mrs. Raghoba G. Dessai, 50 yrs of age, Both r/o Dwarka Smruti, Voddi Cuncolim, Salcete, Goa. …... Appellants. (Defendants in the Trial Court and Respondents in the First Appellate Court) V e r s u s Mr. Rama Yesso Dessai, alias Bontu Yeuso Naik Dessai, Major in age, r/o.H. No.673/3, Biunsa, Cuncolim, Salcete Goa. …... Respondent. (Plaintiffs in the Trial Court and Appellants in the First Appellate Court) (Above all are the Registered addresses) Mr. M. P. Almeida, Advocate for the Appellants. Coram :- F. M. REIS, J Date : 16 th November, 2011 ORAL JUDGMENT Heard Shri M. P. Almeida, learned Counsel appearing for the Appellants. 2. The above Appeal challenges the Judgment passed by the Lower Appellate Court dated 28.02.2011, whereby the Appeal preferred by the SA-115-11 -2- Respondent was allowed and impugned Judgment and Decree passed by the learned Trial Judge was set aside consequently, the Appellants herein were directed to remove the pipes carrying dirty waste water into the suit paddy field and are also directed to remove all the garbage, broken glass pieces, steel rods and waste construction material dumped in the suit property, within a period of three months. The Appellants are also restrained from letting waste dirty water into the suit paddy field and from dumping any garbage or other material into the suit property. 3. The suit was filed by the Respondents on the ground that there is a paddy field known as “Pingop” surveyed under no. 653/7 situated within the Village of Cuncolim, Salcete, Goa, and presently the paddy field has four portions, one portion being cultivated by the heirs of late Dharmu Bhiku Naik Dessai, the second portion being cultivated and possessed by the heirs of late Shambu Sida Naik Dessai and the third portion being cultivated and possessed by Rama Yesso Dessai, Respondent herein and the fourth cultivated and possessed by Govind Devappa Dessai and Smt. Gomati Bojro Naik. It is further their case that the suit paddy field along with its northern boundary is bounded by the tar road leading from Assolna to Cuntolim and by the retention wall and/or house property of the Appellants herein. It is further their case that the Respondents have become deemed owners of the suit paddy field portion. It is further their contention that for the first time in 2007, the Appellants and others are the occupants of their residential house which is situated along the northern boundary of the suit paddy field have been letting out dirty waste water into the suit paddy field through pipe line opening. It is further their case that some garbage is also dumped by the SA-115-11 -3- Appellants which is causing heavy losses to them. It is further their case that there were three pipe lines but presently only one such pipe is seen projecting into the suit paddy field. It is further their case that they lodged complaints to the Authorities and no action was taken. It is further their contention that the Primary Health Centre at Bali, after inspection of the site, required the Appellants to remove one such pipe from the said retention wall of the house property of the Appellants. It is further their case that instead of removing the pipe lines, the Appellants only broke the said outer end of the said pipe line. As such, the suit came to be filed for removal of the garbage as well as for the removal of material and waste water accumulated and also for a permanent injunction restraining the Appellants from in any manner letting out any water including from dumping of water into the suit paddy field. 4. The Appellants filed the written statements disputing the claim put forward by the Respondents. It is further their case that no such water was being let out in the suit paddy field portion. It is further their case that only rain water from the higher level goes into the lower level towards the southern area. For the other reasons stated in the written statement, the Appellants prayed that the suit be dismissed. 5. The learned Trial Judge after framing the issues and recording of evidence, by Judgment and Decree dated 23.04.2010, dismissed the suit filed by the Respondents. The learned Judge came to the conclusion that the flow of waste water and accumulation of waste water and garbage has not been established by the Respondent. The learned Judge further found that the water which was being SA-115-11 -4- drained was only rain water and not dirty waste water. The learned Judge has also considered the letter from the Health Centre and found that there was no evidence to establish that there was any hazard in the suit paddy field portion of the Respondent. Being aggrieved, the Respondent preferred an Appeal challenging the Judgment and Decree passed by the learned Trial Judge before the Lower Appellate Court. The Lower Appellate Court disposed of the Appeal by Judgment and Decree dated 28.02.2011. The Lower Appellate Court whilst re-appreciating the evidence on record found that the identity of the property has been clearly established by the Respondents on the basis of para 4 of the plaint. The learned Judge on the basis of the evidence of Pw.2 and the cross examination of Pw.1, has found that the fact that the Respondents were in possession of the suit paddy field portion was not in dispute. On the basis of such material on record, the learned Judge did not accept the finding of the learned Trial Judge that the identity of the property has not been established by the Respondents. The Lower Appellate Court has also considered the aspect that the Appellants were allowing dirty water into the portion of the paddy field of the Respondent. The learned Judge has taken note of the report of the Executive Magistrate at exhibit 31 and found that when the report was prepared, an inspection was carried out at the site and a panchanama was conducted at the site. The learned Judge also found that the panchanama shows that there were PVC pipe outlet about 3 to 4 cms in length and one of its end was connected to the house of the Respondent. The report also discloses that there was waste water flowing from the said outlet into the paddy field of the Respondent. Another document relied upon by the Lower Appellate Court is the site inspection at exhibit 35 which shows that a pipe is let into the paddy field and that one of the pipes is for the purpose of waste water while the other is for carrying SA-115-11 -5- rain water. The learned Judge also found that washing out of rain water would only be restricted during rainy season and not afterward. The learned Judge also took note of the evidence of Pw.3, who found accumulation of water in the month of November, which cannot be attributed to be on account of rains. The learned Judge found that domestic water was being flown into the paddy field of the Respondent. The learned Judge relying upon exhibit 31 also found that garbage waste is sent into the paddy field portion. As such, the injunction granted by the Lower Appellate Court is only with request to letting out waste dirty water into the suit paddy field portion and to remove the waste and garbage dumped into the said paddy field portion. 6. Upon hearing the learned Counsel appearing for the Appellants and on perusal of the Judgments passed by the Courts below and material on record, I find that the Lower Appellate Court has only restrained the Appellants not to throw any dirty water into the paddy field portion of the Respondents and to remove any pipe line which allows such waste dirty water to flow into the suit paddy field portion of the Respondent. As such, the contention of Shri Almeida, learned Counsel appearing for the Appellants to the effect that the Appellants have been restrained to even allow rain water to drain from the higher level to the lower level, cannot be accepted. The injunction is restricted only to the extent of allowing waste dirty water to flow into the suit paddy field portion. The Lower Appellate Court has arrived at the findings of fact based on the material on record. The documentary evidence at exhibit 31 and 35 have been relied upon by the Lower Appellate Court to come to such finding of fact. The learned Trial Judge has erroneously come to the conclusion that the identity of the suit paddy field itself has not been SA-115-11 -6- established. Apart from that, there was no serious dispute as far as occupation of Respondent of the suit paddy field portion is concerned. The learned Trial Judge has also erroneously come to the conclusion that the fact that dirty water has been allowed to flow into the suit paddy field portion has not been established by the Respondent. The reports relied upon by the Lower Appellate Court ex-facie establish that at the time of site inspections, waste dirty water was found in the suit paddy field portion coming from the property of the Respondent. Such finding of facts arrived at on the basis of the material on record, cannot be re-appreciated by this Court in a second appeal. There is no restraint Order passed against the Appellants to allow rain water to drain from the higher level to the lower level if at all such situation exists at the site. The only aspect considered was whether waste dirty water could be allowed into the paddy field portion of the Respondent. Considering that there is no evidence on record to show that there are any houses in the vicinity of the suit paddy field portion, I find that the Lower Appellate Court has rightly appreciated the evidence on record and passed the impugned Judgment and set aside the Judgment passed by the learned Trial Judge. 7. There are no substantial questions of law that arise in the present Appeal which call for any interference of this Court under Section 100 of the Civil Procedure Code. Hence, the above Second Appeal stands dismissed. F .M. REIS, J. arp/* SA-115-11