HIGH COURT OF UTTARAKHAND, AT NAINITAL Second Appeal No.162 of 2007 Shivcharan Badoni S/o late Indramani Badoni … Appellant Versus Sri Virendra Datt & another … Respondents Dated:- 16th February, 2010 Hon’ble Tarun Agarwala, J. Heard Sri B. P. Nautiyal, the learned counsel for the appellant and Sri Lalit Sharma, the learned Brief Holder for the State of Uttarakhand, on the restoration application. Cause shown in the restoration application is sufficient. The Restoration Application is allowed. The order dated 17.03.2009 is recalled and the appeal is hereby restored in its original number. Heard the learned counsel for the appellant. This is the plaintiff’s second appeal having lost from both the courts below. The plaintiff filed a suit against the defendant alleging that his house is adjoining the house of the defendants and that the plaintiff’s house is at a lower height, whereas the defendants’ house is on the upward. It was alleged that the defendants constructed the house subsequently after the construction of the plaintiff’s house and that the waste water from the kitchen and bathroom was flowing into the house of the plaintiff causing dampness and, consequently, a notice was issued to the defendants and, thereafter, the suit was filed for grant of injunction. The defendants contested the matter and denied the allegation. On the basis of the pleadings, the issues were framed. The trial court, after considering the matter, found that the defendants’ house was constructed at an earlier point of time and that the plaintiff had constructed his house at a later point of time. The trial court further finds that the defendants are not discharging their waste water towards the house of the plaintiffs and, therefore, the trial court dismissed the suit with cost. The appellate court also came to the same result and found that the dampness in the wall of the plaintiff was not as a result of the waste water of the defendants. The evidence has also come to the effect that the soak-pit constructed by the defendants was a Pakka construction and that there was no seepage from the soakpit. The trial court, accordingly, dismissed the appeal. The plaintiff, being aggrieved, has filed the second appeal. Having heard the learned counsel for the appellant and having perused the judgments of the court below, this Court finds that the judgments of both the courts below are based on material evidence, that was brought on record. The findings arrived at are findings of fact, which cannot be interfered in a second appeal. This Court 2 further finds that no substantial question of law exist, which would warrant decision in this appeal. The second appeal, consequently, fails and dismissed summarily. (Tarun Agarwala, J.) Dated 16.02.2010