1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 437/2007 (Bhimrao Kothiram Channote Vs. Rajeram Govinda Alone) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 7 th FEBRUARY, 2008. Heard Shri Walthare for the appellant, and Ms. S.D. Agrawal, h/f Shri Ghare, for the respondent. The appellant is the original plaintiff. A suit was filed by the plaintiff for grant of permanent injunction restraining the defendant from discharging the rain water from the house of the defendant to the house of the plaintiff. According to the plaintiff, house of the plaintiff was situated on the southern side of the house of the defendant and the defendant led the discharge of rain water through the holes which were made towards the house of the plaintiff. It was the case of the plaintiff that the rain water falling in the courtyard of the plaintiff caused damage to the plaintiff's house. The defendant denied the claim of the plaintiff and further denied that the plaintiff was the owner of the house. It was submitted by the defendant that while constructing his house, 2 he had left 2' land on southern side to discharge the water, but the plaintiff deliberately erected new bathroom towards the house of the defendant. According to the defendant, since he did not lead the discharge of the rain water to the house of plaintiff, there was no question of causing damage to the house of the plaintiff. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence of parties, led on record, held that the plaintiff failed to prove that the defendant deliberately led the discharge of rain water on the plaintiff's side. There was no question of causing any nuisance and damages to the plaintiff. The trial Court, while recording the aforesaid findings, relied on the map of the Court Commissioner which, according to the trial Court, falsified the plaintiff's case that the discharge of the rain water of the defendant's house was causing damage to the house of the plaintiff. The trial Court also considered the oral evidence tendered by the plaintiff and the defendant, to record the finding against the plaintiff. The trial Court, however, did not accept the Samzotapatra or the compromise deed which was filed by the defendant and was exhibited vide exh.35, on the ground that the scribe of the said document was not examined by the defendant. However, on the basis of the other evidence on record, the trial Court dismissed the suit of the plaintiff. The first 3 appellate Court confirmed the findings recorded by the trial Court. The appellate Court considered the evidence on record, specially the notice issued by the plaintiff on 27/7/2001 and further relied on the Samzotapatra or the compromise deed at exh. 35. The appellate Court held that the document was duly proved by the defendant in his evidence and the attesting witness to the document by name Panditrao Dabhade was also examined by the defendant. According to the first appellate Court, the evidence of the defendant and his witness remained un-shattered and, in fact, the plaintiff was not able to prove by tendering cogent evidence on record that the defendant had led the discharge of the rain water on the site of the plaintiff. The findings recorded by both the Courts are pure findings of facts based on the proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. Second appeal, therefore, fails and is dismissed with no order as to costs. JUDGE RMP