(1) SA. 623.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 623 OF 2009 Madan S/o Punamchand Pardeshi, Age : 52 years, Occu.: Advocate, R/o. C.T.S. No. 1050, Kharewad, Shirpur, Tq. Shirpur, Dist. Dhule .. Appellant VERSUS 1] Jayant S/o Shridhar Khare, Age : 59 years, Occu.: Agri., R/o Khare Wada, Shirpur, Near Balaji Temple, Lower Town, Tq. Shirpur, Dist. Dhule 2] Shirpur Warwade Nagar Parishad, Through Chief Officer, Shirpur Warwade Nagar Parishad, Tq. Shirpur, Dist. Dhule .. Respondents Mr. R.K. Khandelwal, Advocate for the appellant None present for the respondents CORAM : A.V. NIRGUDE, J. DATED : 5TH OCTOBER, 2009 ORAL ORDER:- 1] The appellant as plaintiff filed the suit alleging that the respondent no.1’s septic tank attached to his W.C. was causing nuisance emitting foul smell. He asserted that the septic tank was constructed above ground level, which was against the rules of the respondent no.2 Nagar Parishad. (2) SA. 623.2009 The respondents denied this allegation. At the request of the parties, the learned Judge of the trial Court appointed a Court Commissioner to inspect the site. The Court Commissioner did not support the allegations of the appellant. The learned Judge of the trial Court believed the appellant’s evidence when he stated that the septic tank emitted foul smell. He also recorded a finding that the Nagar Parishad "must have directed" the respondent no.1 to construct the septic tank below the ground level and that the septic tank was not properly constructed despite such direction. . The learned Judge of the first appellate Court, however, rejected the case of the appellant saying that the appellant is the only person who is making grievance of foul smell. He took into account the Court Commissioner’s report and lack of support of other neighbourhood witnesses. He also recorded that there is nothing on record to show that the Nagar Parishad had directed the respondent no.1 to construct the septic tank in a particular fashion. He took into account the fact that the respondent no.2 Nagar Parishad had supported the case of the respondent no.1 and had denied the allegations of the appellant about foul smell etc. 2] The finding of the first appellate Court are based on facts of the case. There appears no substantial question of law involved in this appeal. (3) SA. 623.2009 The Second Appeal, should therefore fail. The Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp