IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO SECOND APPEAL No : 1057 OF 2009 Between: Siraj Ahmed and another. . .Petitioners And Smt.Javiya Savitri .. Respondent THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO SECOND APPEAL No.1057 OF 2009 JUDGMENT : The two defendants are the appellants in the Second Appeal. The respondent instituted the civil suit O.S. No.48 of 2003 seeking a perpetual injunction against the defendants/appellants from interfering in respect of the house of the plaintiff and objecting the plaintiff from fixing the pipeline to the wall of his house from the attached bath-room up to the septic tank on the eastern side of her house bearing No.4-5- 52/4, Vidyanagar, Adilabad. She also sought for injunction to restrain the defendants from dumping or throwing waste materials and mud in the drain, which is in use and is in possession of the plaintiff on the southern side of the afore mentioned house causing obstruction for the free flow of drainage waters. The trial Court, after full-fledged trial, where the plaintiff was examined as P.W-1, apart from examining two other individuals and exhibiting five documents as Exs.A-1 to A-5 and the defendants have also examined themselves as D.Ws 1 and 2 and also examined another individual as D.W-3, returned the finding that there is a drainage on the southern side of P.W-1’s house in existence from a long time and that it is in use. It is further found that the house in the first floor was got in fact constructed in the year 1976 by the predecessor in interest and title of the plaintiff and after the plaintiff has purchased the property in question in the year 1997 by way of a registered sale deed, obtained necessary permission from the local Municipality, Adilabad and started making constructions in the first floor and that at a time when she was getting the pipelines fixed to the attached bath-rooms and toilets of the first floor to the south-western side, the defendants have objected to the same. The trial Court has decreed the suit and granted the injunction and the appeal A.S. No.40 of 2006 preferred there against by the appellants herein has failed. Both the Courts have concurrently found as a fact that there is a drainage channel carrying waste waters situated on the southern side of the plaintiff’s house and that the plaintiff is constructing the first floor after obtaining the necessary permission from the local Municipality and that she is getting the pipelines fixed to the attached bath-rooms got constructed in the first floor and those pipelines are running towards the septic tank situated on the south-western side of her premises and hence, the defendants have no right of any manner to interfere in this respect. Sri Chandrasekhar, learned counsel for the appellant would strenuously submit that the trial Court has not properly and correctly framed the issues for trial. The pleadings set up by the plaintiff are not at all clear and they are very vague. Therefore, the Courts below have not correctly framed the issues, thus providing an opportunity to the parties to lead appropriate evidence. According to the learned counsel for the appellant, because the distance between the premises of the plaintiff and that of the defendants is hardly 2.5 feet and hence, there could not have been a drainage channel running through carrying waste waters. Learned counsel for the appellant has placed reliance on the judgments rendered by the Supreme Court in Bondar Singh and others, V. Nihal Singh and others[1] and Bachhaj Nahar V. Nilima Mandal & Ors[2]. It is appropriate to notice that the Supreme Court in Bondar Singh’s case in paragraph-4 has clearly pointed out that if the findings of the subordinate Courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under Section 100 C.P.C. A High Court cannot shut its eyes to the perverse findings of the Courts below. In Bachhaj Nagar’s case, it was pointed out by the Supreme Court that in the absence of a claim by the plaintiff based on an easementary right, the 1st defendant did not have an opportunity to demonstrate that the plaintiff’s had no easementary right. In the absence of pleadings and an opportunity to the 1st defendant to prove such a claim, the High Court could not have converted a suit for title into a suit for enforcement of easementary right. I am afraid, the contentions canvassed by the learned counsel for the appellant do not merit any consideration, for, the suit in the instant case has been specifically filed seeking perpetual injunction against the defendants/appellants. The case of the plaintiff is that she purchased the property in question by way of a registered sale deed in the year 1997 and thereafter obtained the necessary permission from the local Municipality for making constructions in the first floor of the existing house and that the ground floor of the house was constructed by the predecessor-in-title way back in the year 1976 and that the pipe- lines which are sought to be connected to the attached bath rooms constructed in the first floor premises are all lying with her own premises and they are sought to be connected to an existing septic tank situated on the south-western side of the premises and that there is a drainage channel on the southern side of her premises carrying waste waters. Therefore, clearly the parties have understood the pleadings set up by the plaintiff and the evidence was accordingly lead in. I, therefore, do not consider that the findings recorded by the trial Court as well as the appellate Court in this regard are contrary to the evidence on record, for them to be characterized as perverse findings. Secondly, the nature of the suit is all through remained the same. There is no change that is sought to be brought about subsequent to the institution of the suit. Injunction was sought for on the grounds of exclusivity of the right of the plaintiff to use her own premises in the manner considered appropriate by her. Therefore, I do not find the two judgments of the Supreme Court relied upon by the learned counsel for the appellant would be of any assistance to the appellant. No substantial questions of law of general importance fall for consideration in the second appeal and hence, the second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed at the admission stage. No costs. _____________________________ JUSTICE NOOTY RAMAMOHANA RAO December 02, 2009 KSH [1] AIR 2003 SUPREME COURT 1905(1) [2] AIR 2009 SUPREME COURT 1103