1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.478 OF 2009 WITH CIVIL APPLICATION NO.1590 OF 2009 Mr.Parsharam @ Prasad Balku Khobre ..... Appellant vs. Mr.Milind Basappa Ekunde & ors. ..... Respondents Mr.Rahul P.Walvekar, Advocate for appellant. None for respondents. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 4th December, 2009. PC : 1. This Second Appeal is preferred against the concurrent finding of the courts below as regards the disputes of facts between the parties. There is no question of law involved in the proceedings. The appeal is filed contending that the appreciation of evidence of the Courts below is not proper and therefore the decree passed, is perverse. 2. The appellant carries on business of supplying water to different institutions. According to respondents who are the original plaintiffs, in March 2000, an oral agreement was arrived at between them and the appellant for drawing water from the well belonging to respondents for consideration of Rs.70,000/- per year to be paid by the appellant. Under the agreement, the appellant was 2 permitted to install submersible electric motor pump on the well. The year of drawing water agreed between the parties was to be from March to February. The appellant paid the consideration for the years 2001 and 2002. However, thereafter, he failed and neglected to make the payment, though he continued to draw the water. The respondents therefore sent Advocate’s notice dated 5 th August 2005 calling upon the appellant to pay sum of Rs.1,80,000/- being the amount due for drawing water till then and also called upon him to stop drawing water and to remove submersible pump. The notice was sent by registered Post A/D as well as Under Certificate Posting. The packets sent by registered post A/D returned with remark “refused”. As the appellant failed to stop drawing up water and also make payments, the respondents were constrained to file the present suit. The defence of the appellant was of total denial. He denied that he is drawing the water from the well of respondents. 3. The evidence led in the matter was of respondent no.1 and the appellant. Respondent no.1 gave details of oral agreement and receipt of payment by the respondents for drawing of water and payments due. The appellant though in his examination in chief denied the suit transaction, the Courts below found that the material brought on record in his cross-examination supported the respondents. The appellant admitted in his cross-examination that he has been purchasing water for supplying to different factories and process units. He however was unable to even name the persons 3 from whom he is purchasing the water. The appellant does not have any independent water source. That means he is acquiring water from somebody for his business. The appellant claimed to have a submersible water pump and also electric connection of 7 H.P. capacity. But he could not the location of the pump and electricity connection of such high power. In the circumstances, the trial Court has drawn adverse inference against him for withholding the evidence in his possession. The appeal Court has confirmed the finding and decision of the trial Court by holding that the findings recorded are based on evidence and the view taken by the trial Court is probable and possible. Mr.Walvekar, the learned counsel for the appellant has taken me through the pleadings of the parties, the evidence led thereof and the decision of both the courts below. The findings recorded by the courts below are seen to be based on the evidence and the view taken is proper. In the circumstance, the same cannot be interfered with. There is no substantial question of law arising for consideration of this Court. Hence, the Second Appeal is dismissed. In view of the dismissal of the Second Appeal, the Civil Application No.1590 of 2009 does not survive, the same is accodingly disposed off. (Smt.R.P.SondurBaldota, J.)