1 (SA 279 of 2011 with CA 742 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 279 OF 2011 WITH CIVIL APPLICATION NO.742 OF 2011 Bhairu Devba Kathale (since deceased through his LRs.) Rajaram Bhairu Kathale and Ors. ...Appellants Vs. Bhau Rau Mohite and Ors. …Respondents ----- Mr.R.A. Thorat for Appellants. ----- CORAM: V.M. KANADE J. DATED: 10th June, 2011 P.C. 1. The Appellant is the original Defendant and the Respondents are the Original Plaintiffs. The Plaintiffs had filed a suit for mandatory injunction directing the Defendant to remove stone railing which he had erected as a result of which, the natural stream water was diverted to his own field and the Plaintiffs were deprived from using the natural stream water. 2. The Plaintiffs' case is that the land Gat No.535 admeasuring 4 hectares and 80 ares is situated at Village Talegaon. There is a natural water source and the stream flows from the percolation tank through Gat No.535. The Plaintiffs' case was that their natural flow of 2 (SA 279 of 2011 with CA 742 of 2011) water was severed by the Defendant by erecting 8 meters railing of stone. 3. The Defendant contended that he had constructed a well and had removed the stones from the well and, therefore, he was entitled to use the said well and the pipeline which was constructed by him. According to the Defendant, the District Inspector of Lane Revenue was influenced by the Plaintiffs and other villagers and they prepared a false panchnama. It was contended that the Defendant had not committed any kind of encroachment and had not obstructed the stream by constructing a stone railing. It was contended that there was no cause of action. The Trial Court decreed the suit and appeal filed by the Defendant against this order was dismissed and order of the Trial Court was confirmed. 4. The learned counsel for the Appellants has raised the following substantial questions of law:- “(1) It is also not considered by the trial court C.J.J.D., that Civil Judge visited the disputed place and panchnama and notes of C.J.J.D., are not considered by the C.J.J.D. (2) The Hon’ble trial court also much met at statement recorded by Circle Inspector at Ex- 107. Which was not made by the defendant. (3) It is also not considered by the trial 3 (SA 279 of 2011 with CA 742 of 2011) court the statement recorded by Circle Inspector at Ex.107 is under pressure of M.L.A. (4) The Ld. Trial Court wrongly relied upon the witness version which is contrary to map submitted by a original plaintiffs along with suit.” 5. In my view, all these questions challenge the finding of fact recorded by both the Courts below. The Trial Court had merely directed the Defendant to remove the stone railing shown in the map Exhibit -87 at his own cost and the Defendant was restrained by an order of injunction from causing any kind of construction which would obstruct the natural flow of suit stream. The contention of the Defendant that he will be prevented from using the water from his own well, is without any substance, as no such direction is given either by the Trial Court or by the Appeal Court. Hence, no substantial question of law is raised in the Second Appeal. Second Appeal is, therefore, dismissed. Civil Application does not survive and is disposed of. (V.M. KANADE J.)