RSA No.4329 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4329 of 2009 Date of Decision: 08.02.2010. Baljinder Singh .……Appellant Versus Sukhdev Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vikas Chatrath, Advocate for the appellant. L. N. MITTAL, J (ORAL) This is second appeal by Baljinder Singh plaintiff, having remained unsuccessful in both the Courts below. Plaintiff filed suit for permanent injunction restraining the defendants from flowing dirty muddy water towards the house of the plaintiff. The plaintiff also sought mandatory injunction directing the defendants to remove the septic tank. The plaintiff alleged that the septic tank is a source of nuisance for the plaintiff and omits foul smell. The defendants alleged that the plaintiff had earlier initiated proceedings under Section 133 of the Code of Criminal Procedure (in short, Cr.P.C) in the Court of Sub Divisional Magistrate (SDM), Abhor against the defendants regarding the same matter. The drains in the village were constructed by Gram Panchayat about 20 years back and the drains have flow towards southern side. Waste water of houses of both the parties flows in the drains towards southern side. The septic tank of the defendants has waste water RSA No.4329 of 2009 -2- flow towards south since beginning. It can’t flow towards north (as sought by the plaintiff) because level of northern side is higher. The suit was initially dismissed by the trial Court vide judgment and decree dated 19.03.2005. However, in appeal preferred by the plaintiff, lower appellate Court vide judgment and decree dated 04.04.2007 remanded the suit to the trial Court for fresh decision after considering objections against the report of Local Commissioner preferred by the plaintiff. Thereafter learned Civil Judge (Junior Division), Abhor vide judgment and decree dated 19.08.2008 dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 23.04.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that inspite of direction by lower appellate Court vide judgment dated 04.04.2007 remanding the suit to the trial Court, the trial Court has not considered the objections preferred by the plaintiff against the report of Local Commissioner. The contention is devoid of any merit because the said objections have been considered and discussed in paragraph 10 of the trial Court judgment and have been found to be without any substance. The defendants examined the Local Commissioner as witness. The plaintiff cross-examined the Local Commissioner at length, but nothing favourable to the plaintiff could be elicited from the Local Commissioner. The Commission was RSA No.4329 of 2009 -3- executed by the Local Commissioner in the presence of the parties. The Local Commissioner had been appointed by the Court. The plaintiff could not lead any cogent evidence to substantiate his objections against report of the Local Commissioner. Trial Court has assigned sufficient and valid reasons for rejecting the objections of the plaintiff against the report of Local Commissioner. No other contention has been raised on behalf of the appellant before me. On the other hand, there is concurrent finding of fact by both the Courts below that there is natural flow of water towards south i.e from the side of house of defendants towards house of the plaintiff and the flow cannot be diverted or directed towards north as desired by the plaintiff on account of difference in level. The concurrent finding of fact by both the Courts below, based on proper appreciation of evidence, does not suffer from any perversity or illegality. No question of law much less substantial question of law arises for determination in the instant second appeal. In view of the aforesaid discussion, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 08.02.2010 A. Kaundal