1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 393/2010 (Girish Uttamchandji Chaudhari & others VERSUS Yashwant Mahadeorao Tamhankar (dead) thr. LR's Gajanan Yeshwant Tamhankar & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri G.G. Modak, counsel for the appellants. Shri M.M. Agnihotri, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 11 , 2010 . Heard. The appellants are the original plaintiffs. They had filed a suit against the defendants for a declaration that the plaintiffs had a right to fetch the water from the suit well. According to the plaintiffs, the plaintiffs had the access to the suit well through the point ED. The said access ED, according to the plaintiffs was, however, sought to be closed by the defendant no.1 thereby defying the right of the plaintiff to fetch water from the suit well. A permanent injunction was also sought by the plaintiff against the defendants. The defendant no.1 filed the written statement and denied the claim of the plaintiff. According to the defendant no.1, there was a common wall CDE in between his 2 property and the property of the plaintiffs. According to the defendant no.1, the plaintiffs had illegally demolished, the northern side wall at point ED and created a new point to fetch water from the points ED. The defendant no.1 sought for the dismissal of the suit and also filed a counter claim for a declaration that the plaintiff did not have a right to fetch water from the suit well from the point ED and had also no right to construct the building touching the old construction of the defendants. A mandatory and permanent injunction was also sought by the defendant no.1. On an appreciation of the evidence on record, the trial Court held that the plaintiffs had failed to prove that they had a right to fetch the well water from the point ED as shown in the plaint map. Having answered the aforesaid issue against the plaintiffs, the trial Court held that the plaintiffs were not entitled to a decree for declaration and injunction as sought by them. The trial Court partly allowed the counter claim filed by the defendant. The first appellate Court, on a reappreciation of the evidence on record, confirmed the findings recorded by the trial Court and dismissed the appeal of the plaintiff. The findings recorded by both the Courts are based on a proper appreciation of the material evidence on 3 record. The findings are based on the oral and documentary evidence, specially the admissions of plaintiff Girish Chaudhari in his cross-examination that it was not true that there was no common wall between the points D and E. The findings recorded by both the Courts are pure findings of facts and they do not give rise to any substantial question of law. The second appeal, therefore, fails and is dismissed with no order as to costs. JUDGE APTE