1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.51 OF 2003 WITH CIVIL APPLICAITON NO.373 OF 2003 Ranganath Banshidhar Shinde and others. ..Appellants Versus Anant Kashinathrao Jujgar and others ..Respondents ... Advocates appearing for : Appellants : Shri B.S.Kudale Respondents 1,4 & 5 : Shri Dhananjay Deshpande Respondents 2B and 3 : Served ... CORAM : R.M.BORDE, J. Dated : 21.7.2009 PER COURT :- 1. It is an appeal by original defendants, challenging the judgment and decree passed by the learned II Ad-hoc Additional District Judge, Beed in Regular Civil Appeal No.165 of 1996, thereby allowing the appeal preferred by the original plaintiffs and further issuing mandatory directions to the defendants to demolish the Valan (Bandh), constructed in Gut No.237, as shown in the map of the Court Commissioner filed with report Exhibit 26, within two months from the date of issuance of the directions and to give way to the natural flow of water. 2. The suit was presented by the plaintiffs, being Regular Civil Suit No. 281 of 1987, claiming perpetual and mandatory injunction. In substance, 2 the allegation is that the defendants, who are adjacent owners, have constructed a bandh on Eastern side, obstructing the natural flow of the water flowing from South to North in their agricultural properties, which led to accumulation of water in the agricultural lands of the plaintiffs. It is contended that the natural flow of water was diverted to Gut Nos.235, 238 and 239, and the plaintiffs, who hold adjacent agricultural lands are sustaining loss of crops so also quality of land is adversely affected. 3. The defendants have resisted the suit by filing written statements. They have denied the claim of the plaintiffs. According to them, the Zilla Parishad has constructed Majalgaon Sadola Road so also a bridge, due to which, the natural flow of the water was diverted. According to defendants, the act alleged against them is not the cause of any damage to the agricultural properties of the plaintiffs and the act alleged against them cannot be said to have contributed to any loss suffered by the adjoining agriculturists. 4. The trial Court, after considering the evidence of the parties, dismissed the suit by its judgment and decree dated 30.9.1996. Plaintiffs, aggrieved by the said judgment and decree passed by the trial court, preferred an appeal being Regular Civil Appeal No.165 of 1996, which came to be allowed by the first appellate Court on 5.10.2002. 5. The first appellate Court, placing reliance on the report of the District Inspector of Land Records (for brevity, “DILR” hereinafter) as well as the report of the Court Commissioner has drawn a conclusion that the Valan (Bandh) constructed by the defendants in their agricultural properties is the cause for obstruction of natural flow of water and 3 accumulation of the water in the lands belonging to the plaintiffs. It is held by the first appellate Court that the alleged construction of road by the Zilla Parishad is not the cause for diverting the natural flow of water but the root cause is the activity of defendants. The first appellate court therefore, while allowing the appeal, issued mandatory directions to defendants, as noted above. 6. I have perused the judgment of the first appellate Court. Shri Kudale, learned Advocate for the appellants has vehemently contended that the first appellate Court has committed an error in relying upon the map of the DILR, especially when it was not accepted by the trial Court. According to him, the concerned witness, who has drawn the measurement i.e. DILR has not been examined in the trial Court and as such, without formal proof of the map, no reliance ought to have been placed thereon. He has also contended that the case presented by the plaintiffs cannot be said to have been substantiated by the spot inspection report submitted by the Court Commissioner. According to him, the report of the Court Commissioner can not be accepted for drawing an inference that the act allegedly committed by the defendant is the cause for accumulation of water in the fields of the plaintiffs. 7. So far as the first contention raised by Shri Kudale, learned Advocate for the appellants is concerned, it can be said that the map prepared by the DILR, in effect, is identical with the map placed before the Court, tendered by the Court Commissioner. Report of the Court Commissioner has not been disputed by the defendants. One Shri Bhagwan Thesar was appointed as Court Commissioner to conduct local inspection. He has visited the spot and submitted the report to the trial 4 Court. Report submitted by the Court Commissioner makes it clear that the defendants have erected a bandh in their land Gut No.237, and therefore, the natural flow of water is diverted. The obstruction has resulted in causing damage to the agricultural properties belonging to plaintiffs. It has been observed by the first appellate Court that the report and the map submitted by the Court Commissioner tallies with the map drawn by DILR. In these circumstances, therefore, the first appellate Court has not committed any error in placing reliance on the report, tendered by the DILR and submitted by the plaintiffs on record. 8. Since no substantial question of law is found to have been involved in the Second Appeal, the appeal stands dismissed. No order as to costs. 9. In view of the dismissal of the Second Appeal, Civil Application No. 373 of 2003, seeking stay, does not survive and accordingly stands dismissed. No order as to costs. (R.M.BORDE, J.) ... akl