IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.115 of 2001. Date of Decision: 24.2.2011. Som Dutt ..Appellant Versus Hans Raj ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.Bhuvnesh Sharma, Advocate. For the Respondent(s): Ms.Salochana Kaundal, vice Sh.O.P. Thakur, Advocate. Deepak Gupta, J.(oral) 1. This Second Appeal is directed against the judgment and decree dated 1.12.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No.73 of 1993 whereby he set-aside the judgment and decree passed by the learned Sub Judge, Ist Class, Court No.2, Hamirpur dated 30.1.1993 in Civil suit No.188 of 1989 and consequently dismissed the suit of the plaintiff. 2. Briefly stated, the facts of the case are that the plaintiff and defendant are neighbours. The plaintiff had constructed a new bath room in his house and the drain of the bathroom was taken out through a channel(drain). The case of the - 2 - plaintiff was that the defendant had blocked the drain/channel and the plaintiff therefore prayed that a decree for declaration be passed that he is entitled to discharge the water from his house and bathroom into the said channel and decree for mandatory injunction be passed directing the defendant to remove the obstruction. 3. The stand of the defendant was that in fact there was no bath room or kitchen earlier in the house of the plaintiff. He constructed a new bathroom and kitchen and also the drain after demolishing a cattle-shed which stood on the spot. According to the defendant, the plaintiff constructed the channel/drain in such a manner that it ran adjacent to the courtyard of the defendant and opened into the passage and the courtyard of the defendant. The defendant made a complaint in this regard before the Gram Panchayat and the members of the Panchayat visited the spot and directed the plaintiff not to throw rubbish or dirty water into the courtyard of the defendant. 4. Issues were framed and the learned trial Court decreed the suit of the plaintiff holding that the - 3 - plaintiff had succeeded in proving that he had every right to send the water through the channel and passed a decree for injunction restraining the defendant from blocking the said channel/drain. The defendant thereafter filed an appeal and the learned lower appellate court allowed the appeal and held that the defendant had a right to stop the drain and prevent filthy water from coming into his courtyard. 5. This appeal was admitted on the following substantial question of law: “Whether the judgment and decree passed by the learned trial Court has wrongly been reversed by the learned Appellate Court and the findings given by the learned Appellate Court are perverse and contrary to the pleadings of the parties and evidence on the record.” 6. To my mind, this question cannot be said to be a question of law much less a substantial question of law. Appreciation of factual facts and evidence is totally within the domain of the Courts below and this Court in exercise of powers under Section 100 CPC cannot start re-appreciating the evidence unless it has been shown that there has been total misleading of the evidence and - 4 - misreading /mis-interpretation of an important document. 7. I have seen the site plan produced by the plaintiff himself which was prepared by the plaintiff and exhibited as Ext.PW-1/A. A perusal of this plan itself shows that there were various other options open to the plaintiff whereby he could have taken the filthy water from the kitchen and bathroom of his house to the main road through or adjacent to his own land but instead of doing so he has constructed the drain in such a manner that the filthy water goes through the land of the defendant. Every person has a right to protect his property. The findings given by the learned lower Appellate Court that the plaintiff had no right to take his rain water through the land of the defendant are absolutely correct and call for no interference. 8. In view of the above discussion, there is no merit in the appeal which is dismissed. No costs. February 24, 2011. ( Deepak Gupta ), J. PV