1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.487 OF 2010. Kishan S/o Bhoju Chimne ... Appellant. Versus Baburao S/o Ghansham Chimne ... Respondent. ... Mr.R.K.Jadhavar, advocate for the appellant. ... CORAM : S.V.GANGAPURWALA,J. Date : 27.09.2010. PER COURT 1. This is the defendant's Second Appeal. 2. The present Respondent/plaintiff has filed a suit seeking perpetual and mandatory 2 injunction against the present appellant restraining the appellant from diverting the flow of rain water on the earthen room of plaintiff's Dhaba. So also the mandatory injunction was sought directing the defendant to remove his tin sheets panel which is beyond his wall limit and encroaching the air space of the plaintiff. 3. Both the Courts on appreciation of evidence have decreed the suit and have clamped injunction against the present appellant. 4. Mr.R.K.Jadhavar, learned counsel for the appellant contends that the case of the plaintiff ought to have been dismissed on the ground of acquiescence and laches as for the period of 3/4 years, he did not raise any objection and has subsequently filed the suit. According to him, the plaintiff would take care to see that the rain water does not enter the plaintiff's premises. According to him, he has erected the tin-roof on the air space which would not hamper the rights of the plaintiff. 3 5. Perusal of the judgments of both the Courts, it is manifest that the defendant has erected the tin-sheets panel beyond his wall limit and it is encroaching on the air space of the plaintiff. The aspect of acquiescence and laches was not taken as a defence before the Courts below, as such the first hand of the Second Appeal it can not be considered as that would be a mixed question of law and fact. However, the relief of injunction is a discretionary relief. Both the Courts concurrently on appreciation of evidence have come to the conclusion that the defendant has encroached the aerial space of the plaintiff by fixing his tin sheets and the rain waiter is also diverted on the premises of the plaintiff. In view of the concurrent findings of facts, no substantial question of law is involved. The Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa48710 4