: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.689 OF 2003 SECOND APPEAL NO.689 OF 2003 SECOND APPEAL NO.689 OF 2003 WITH WITH WITH CIVIL APPLICATION NO.1007 OF 2003 CIVIL APPLICATION NO.1007 OF 2003 CIVIL APPLICATION NO.1007 OF 2003 Raghunath Bapu Kudale ...Appellant V/s. Jagannath Dnyanu Kudale & Ors. ...Respondents Mr.Dilip Bodake, Advocate, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate appearing for the appellant. The appellant is the original plaintiff. The appellant filed a suit for declaration and injunction claiming right to draw water from the suit well. 2. The case of the appellant was that on the basis of an agreement in writing dated 14th September, 1983, a well was made in the suit property. Contention is that the appellant-plaintiff contributed to the expenditure and therefore the appellant and the 1st respondent have 1/2 share each in the suit well. The Trial Court dismissed the suit and the Appellate Court has dismissed the Appeal preferred by the appellant. : 2 : 3. The learned Advocate for the appellant invited my attention to the finding recorded by the Trial Court that the appellant has proved the execution of agreement dated 14th September, 1983 by the 1st respondent. He submitted that the Appellate Court has not disturbed the said finding and the said agreement itself creates a right in favour of the appellant in the Well water. He, therefore, submitted that both the Courts below committed an error by denying the relief of declaration and injunction. 4. I have carefully considered the submissions. It is true that agreement dated 14th September, 1983 was duly proved. However both the Courts and especially Appellate Court found that the appellant-plaintiff at the time of hearing came out with an altogether new theory regarding existence of an oral agreement between the parties and digging of the well on the basis of the said oral agreement even before execution of the said written agreement. In the context of the said new case made out by the appellant, the case made out regarding contribution made for well was tested by the Appellate Court. The Appellate Court after scrutiny of evidence found that the appellant could not establish that the well was : 3 : made on the basis of oral agreement prior to execution of the aforesaid agreement in writing. As the said factual aspect was not established by the appellant, it is obvious that he cannot claim any right on the basis of the said agreement in writing. 5. There is no reason to interfere with the concurrent findings of facts. No substantial question of law arises. Second Appeal is dismissed. 5. In view of dismissal of the Appeal, Civil Application No.1007 of 2003 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]