1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 295/2007 (Raoji Bhiwa Pilare (dead) Thr. L.R's a) Kaushalya wd/o Raoji Pilare & others VERSUS Rukhmabai wd/o Raghobaji Pilare & 12 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri V.N. Morande, counsel for the appellant. Shri A.C. Dharmadhikari, counsel for the respondent no.1 to 6. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 26, 2008. Heard the learned counsel for the parties. The appellant is the original defendant. A suit was filed by the plaintiff for a declaration that the flow of the rain water from his field was from the southern side to the northern side and the defendant, whose land was situated on the northern side of his field, had wrongfully obstructed the flow of rain water from the borderline of the field of the plaintiff. According to the plainiff, the water flowed from the plaintiff's field through the khand into the river which was situated into the eastern side of the properties belonging to the plaintiff and the defendant. The defendant denied the claim of the plaintiff and pleaded that, in fact, the flow of 2 water was from the northern side to the southern side and also from the western side to the eastern side, and therefore, the plaintiff's suit for permanent injunction was not tenable. The trial Court, on a consideration of the evidence on record, held that the plaintiff had failed to prove that the discharge of excess water from his field pass through the khand shown in the plaint map. The Court further held that the plaintiff failed to prove that the defendant no.1 had illegally obstructed the plaintiff from discharging excess water from his field. The Court consequently refused to grant the prayer for permanent injunction. In an appeal filed by the plaintiff, the first appellate Court reversed the findings recorded by the trial Court to hold that the plaintiffs succeeded in proving that they had a natural right to discharge excess water from their field through the khand as shown in the plaint map and that the defendant no.1 had illegally obstructed the plaintiff from discharging excess water. Having reversed the findings to the aforesaid effect, the first appellate Court granted a decree of permanent injunction in favour of the plaintiff. The judgment passed by the appellate Court is challenged in this second appeal. 3 According to the counsel for the appellant, the first appellate Court had misappreciated the evidence tendered by the parties on record to hold that the plaintiff had proved his right to discharge excess water to his field through khand. According to the counsel for the appellant, appreciation of the evidence by the first appellate Court was not proper. On the other hand, it is submitted on behalf of the respondent that the findings recorded by the first appellate Court are pure findings of fact based on the appreciation of the material evidence on record, and hence, they cannot give rise to any substantial question of law. I have perused both the judgments in detail. Though the trial Court held that the plaintiff had not succeeded in proving his case, the first appellate Court, which was the final fact finding Court, had an occasion to reappreciate the evidence and on reappreciation of the evidence on record, the findings of the trial Court were reversed by the first appellate Court. In such a case, it cannot be said that the first appellate Court has misappreciated the material evidence on record. 4 None of the questions of law stated in the memorandum of appeal could be said to be substantial questions of law. It is well settled that even misappreciation of evidence cannot give rise to a substantial question of law so as to interfere with the findings in a second appeal. In this case, however, that was not so. For the reasons aforesaid, the second appeal is dismissed with no order as to costs. JUDGE APTE