1 IN THE HIGH COURT OF BOMBAY, AT GOA. SECOND APPEAL NO. 47 OF 2008 1. Mr. Joaquim Fernandes, major in age, married, retired, residing at H.No.213, Panaji Goa. Since deceased through his legal representatives : (a) Meenakshi Sanjeev Khaunte, aged 43 years and her husband. (b) Sanjeev S. Khaunte, aged 48 years. Both residents of H.No.508, Opp. Soul of Ania Dr.Atmaram Borkar Road, Panjim Goa. 9422387507. (c) Menino Jesus F. Fernandes, aged 42 years, married to (d) Lilia Menino Fernandes, aged 35 years, Both residents of H.No.213, Boca-de-Vaca. Panjim Goa. (e) Carmelina Carvalho, aged 41 years, and her husband (f) Gaspar Carvalho, aged 50 years, Both residents of Behind Sanguem Police Station Sanguem Goa, Ph.2604480. 2 (g) Aladina Viegas, aged 39 years, and her husband. (h) Anthony Viegas, aged 40 years. Both residents of Chaitanya Housing Co. Society, Navelcar Estate, Baiguinim, Old Goa. 2. Mrs. Margarida Fernandes, w/o Mr. Joaquim Fernandes, major in age, housewife, residing at Panaji Goa. ... Appellants v e r s u s 1. Mr. Goraknath V. Ambre, major in age, married, residing at Boca-da-Vaca, Panaji Goa. 2. Kamal Ambre, Mother of the defendant no.1, ( Since deceased) through her heirs: a) Smt. Vrinda G. Ambre, wife of Goraknath Ambre, major in age, housewife, residing at Boca-da-Vaca, Panaji Goa. (b) Mr. Suresh Manjrekar, husband of Mrs. Pushpa Ambre nee Mandrekar, major in age, service, residing at Boca-da-Vaca, Panaji Goa. 3 (c) Mr. Srikant Pole, Husband of Ms. Milan Ambre Nee Pole, major in age, residing at Boca-da-Vaca, Panaji Goa. (d) Mr. Manohar Vaste, husband of Mr. Prafulla Ambre, nee Vaste, major in age, residing at Boca-da-Vaca, Panaji Goa. (e) Chirnal Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. (f) Prameshwar Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. (g) Milan Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. (h) Mr. Prafulla Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. (i) Dulari Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. (j) Viju Ambre, major in age, residing at Boca-da-Vaca, Panaji Goa. ... Respondents 4 Mr. Sudin Usgaonkar, Advocate for the Appellants Mr. A. D. Bhobe, Advocate for the Respondents No.1, 2(a) to 2(j). CORAM: R. M. SAVANT, J. Dated: 25th November, 2009. ORAL ORDER : 1. This Appeal takes exception to the Judgment and Decree dated 11.7.2007 passed by the learned District Judge-1, Panaji Goa, by which the Judgment and Decree passed by the Trial Court came to be confirmed and the Appeal filed by the Appellants abovenamed came to be dismissed. 2. The Appellants are the original Plaintiffs who had filed Regular Civil Suit No.46/86 for a mandatory injunction restraining the Defendants i.e. the Respondents herein from digging further trenches or trench next to the back wall and to direct the Defendants to break and demolish whatever is constructed by them in 50 cms gap between the Plaintiffs' rear wall and Defendants' structure leaving the said gap open and for an order and direction 5 to the Defendants to do all the works necessary to cause the monsoon water falling from the Plaintiffs' roof and those falling from the Defendants' wall to flow unobstructed without touching or affecting the Plaintiffs' back wall or rear wall and preventing it from getting soaked with the said water and for certain further reliefs which were claimed by amending the plaint. 3. In the said suit, an application for temporary injunction came to be filed which came to be dismissed against which an Appeal came to be filed by the Plaintiffs. In the said Appeal the parties had arrived at a compromise and the said compromise terms were to be operate pending the disposal of the said suit. 4. The said compromise terms interalia provided for certain mutual obligations of the Plaintiffs and the Defendants. Clause 3 of the said compromise terms provided that “ the Respondents shall ensure through the proper flow of monsoon water through a gutter of concrete just below the roof of the house occupied by the Appellants and that the water will not be allowed to accumulate near the house of the Appellants i.e. Plaintiffs”. It appears that the Plaintiffs had a grievance that the said 6 compromise terms were not abided by the Defendants and therefore had filed an Execution Application. The said Execution Application came to be rejected by the executing Court against which a Civil Revision Application was filed by the Plaintiffs in this Court which Civil Revision Application also came to be dismissed by this Court on the ground that the order passed on the basis of a compromise could not be executed. The Plaintiffs thereafter filed Contempt Applications which also came to be dismissed. The Plaintiffs amended the plaint so as to bring on record the Compromise terms which were arrived at between the parties and on the said basis had also claimed certain reliefs in the suit. 5. In support of their case, the Plaintiffs had produced the site inspection report of one Shri S. N. Bhobe. The Trial Court had also appointed an independent agency known as UNARCO to submit the report of stability. Accordingly, both the reports were before the Trial Court. The Trial Court on the basis of the pleadings framed the issues and considering the material on record answered them against the Plaintiffs. The Trial Court recording a finding that the Defendants were not responsible for the flow of monsoon water in the Plaintiffs' property or that the same also continued to 7 damage the rear wall of the Plaintiffs' house and thereby causing penetration of the monsoon water in the said wall. The Trial Court has arrived at the said finding on the basis of the evidence that was adduced before it including the report of Shri S. N. Bhobe on which the Trial Court thought fit not to rely upon in view of the facts that it was doubtful as to whether Shri S. N. Bhobe had personally visited the site in question and also considered the report of the UNARCO and it is upon consideration of the said material, the Trial Court dismissed the suit filed by the Plaintiffs. 6. Against the Decree passed by the Trial Court dismissing the suit, the Plaintiffs filed an Appeal in the District Court being Regular Civil Appeal No. 28/2006. The District Court in exercise of the Appellate powers re- appreciated the evidence on behalf of the parties and confirmed the Decree passed by the Trial Court. 7. In so far as the application of the Plaintiffs for the appointment of the commissioner which was made by the Plaintiffs before the Trial Court, both the Courts below have observed in the fact situation that was prevailing that the appointment of the commissioner would serve no useful purpose as the commissioner 8 cannot be appointed for collecting evidence and the perusal of the application for appointment of the commissioner of the Plaintiffs and the terms of reference to the commissioner as envisaged therein could amount to the commissioner collecting evidence. Both the Courts below have therefore recorded concurrent findings of fact in respect of the issues that had arisen before them. 8. Having heard learned Counsel for the parties and having perused the grounds of Appeal, in my view no substantial questions of law arise for consideration in the above Appeal. The same is accordingly dismissed. R. M. SAVANT, J at*