IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL. Second Appeal No. 54 of 2007 Farjand and another ….. defendant/Appellant. Vs. Sarif and others …. Plaintiffs/Respondents. AND Second Appeal No.55 of 2007 Farjand and another ….. defendant/Appellant. Vs. Sarif and others …. Plaintiffs/Respondents. Mr. Lalit Tiwari, Advocate, holding brief for Mr. M.S.Tyagi, Advocate for the appellants. Dated: 11-04-2008 Hon’ble B.C. Kandpal, J. Both these appeals, under Section 100 of the C.P.C. arise out of the common judgment and decree, dated 15.2.2007, passed by III F.T.C./Addl. District Judge, Haridwar, in Civil Appeal No. 15/1996 and 16/1996. S.A. No. 54 of 2007 has been preferred against the judgment and decree passed in C.A. No. 15/1996, whereas the S.A. No. 55 of 2007, has been preferred against the judgment and decree passed in C.A. No. 16/1996. 2- Perusal of record reveals that plaintiffs/respondents filed a suit for permanent prohibitory injunction against the defendants/appellants before Civil Judge (J.D.) Haridwar, with the allegation that they are the owner in possession of land ‘Aa’ shown with letters A, B, C, D, in the map attached with the plaint and to reach the said land ‘Aa’ they have been using the way, shown with letters E, F, G, H, falling in land ‘Ba’ and there is no other way to have assess to land 2 ‘Aa’ . But in the month of April 1994, the defendants/respondents has raised pucca construction measuring 12x18 feet towards eastern side from place F,G, and they have threatened to flow the rain water of their houses in the land ‘Aa’. Therefore, suit for permanent prohibitory injunction was filed. 3- The defendants/appellants filed written statement before the trial court and denied the use of Rasta by the plaintiffs/respondents. They also filed counter claim and alleged that the rain water of their houses flows from two feet wide stream running by the side of the disputed Rasta from western side to eastern side and goes to the fields. According to them, the water is flowing from last 50 years, therefore, they claimed easementary right in their counter claim. The defendants/appellants also alleged that their land of village Mubarikpur Alipur is situated within one Khasra No. 19 and the land of plaintiffs/respondents is outside the above Khasra. They also alleged that the plaintiffs/respondents in the month of July, 1994 have raised wall A,B on the disputed land and have obstructed the flow of water coming from their houses, hence they also claimed for removal of the above wall, A,B. 4- The trial court framed relevant issues in the suit. Thereafter, parties adduced evidence in support of their cases. The trial court partly decreed the suit of the plaintiffs/respondents vide judgment and decree dated 17.7.1996, and directed the defendants/appellants not to cause hindrance in the use of the disputed Rasta by the plaintiffs/respondents. The counter claim of the defendants/appellants was also decreed and the plaintiffs/respondents were directed to remove the wall 3 A,B within a month, otherwise the defendants/appellants will have a right to remove the same. 5- Both the parties preferred appeals before the Additional District Judge/III F.T.C. against the above judgment and decree. The first appellate court dismissed the appeal preferred by the defendants/appellants, whereas the appeal of plaintiffs/respondents was allowed and the decree passed in favour of defendants/appellants for removing the wall A,B constructed in land ‘Aa’ and flowing their water, was set aside. The defendants/ appellants were also restrained to cause hindrance in flowing the water by the plaintiffs in land ‘Ba’. 6- The defendants/appellants have now come up before this court by filing these appeals. 7- I have heard Mr. Lalit Tiwari, holding brief for Mr. M.S. Tyagi, learned counsel for the appellant on admission of the appeals and have gone through the substantial questions of law framed in the memo of appeals. 8- After having heard learned counsel for the appellant and going through the questions of law framed in the memo of appeals, I find that no substantial question of law is involved in these appeals to be decided by this Court in these second appeals, as the same relate to factual aspect of the case. The learned counsel also could not point out any substantial question of law involved in these appeals. 9- So far as the factual aspect of the case is concerned, the first appellate court has dismissed the appeal of the defendants/appellants and allowed the 4 appeal preferred by the plaintiffs/appellants and set aside the decree passed in favour of defendants/appellants, on the ground that the plaintiffs/respondents are the exclusive owner of Khasra No.19 and the said fact has also been decided by the trial court in issue No.1. The first appellate court also recorded reason that the Commissioner has given his report that the Rasta and water of the village goes together from east to west as alleged by the plaintiffs and not from west to east as claimed by the defendants. Therefore, the claim of the defendants that the water of their houses flows from west to east and the plaintiffs caused obstruction to it by raising wall A,B seems to be wrong. On the other hand the plaintiffs in their statement have specifically stated that they are the owner of Khasra No.19 and the wall A,B has been raised on their own land. The Commissioner in his report also reported that the public way of the village and the whole water of the village fell in to the pond situated in western side. In the above situation the claim of the defendants/appellants that the water of their houses flows from west to east is against the Commissioner’s report as well as the evidence adduced on behalf of the plaintiffs. Therefore, the first appellate court has given its finding on factual aspect on the basis of evidence before it. I do not find any ground to interfere in the said finding at the stage of second appeal. The first appellate court has rightly interpreted the evidence on record for arriving at a just and proper conclusion. 10- From the above discussion, the appeals lack merit and are liable to be dismissed. 5 11- Accordingly, the appeals are dismissed in limine. The impugned judgment and decree dated 15-2- 2007 passed by first appellate court is confirmed. 12- Let a copy of this judgment be placed in the file of S.A. No. 55/2007. (B.C. Kandpal, J.) ISB