1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.163 OF 2007. Prabhakar Wasudeo Rawale ..vs.. Shiodas Mahadeosa Rawale & 2 ors. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 17th April, 2008. 1. Heard Mr.J.B.Kasat, Advocate for the appellant and Mr.Wakode, Advocate holding for Advocate V.V.Kale for the respondents. 2. This appeal has been preferred by the original plaintiff whose claim for mandatory injunction of removal of door as well as the pipe fixed by the defendants was rejected by the courts below. 3. The courts had granted declaration in favour of the plaintiff that the plaintiff has a right to use 3 ft. lane in between two houses which is held to be a public lane. The courts have, 2 therefore, granted a declaration that the plaintiff had a right to discharge ever water in the suit lane and to repair the walls of his house by going through/over that lane. 4. The courts below, however, rejected the claim with regard to the removal of door and pipe line in the lane. 5. There are two concurrent findings that a direction cannot be issued to remove the door as well as pipe line, since it is found that the door is in existence since 1961 and its reference is also found in the sale-deed since 1961. As far as door is concerned, the courts below have rightly appreciated the evidence as regards the existence of the door since 1961 and therefore, negativated the contention of the plaintiff that it was recently fixed by the defendants. I do not see any perversity in that finding. 6. Learned counsel for the appellant, however, contended before me that the defendant is discharging waste water through this lane and has fixed a pipe beneath the door and that should be directed to be removed. He submits that it causes damage to the walls of the house of the 3 plaintiff on either side. He submits that for this reason, it is necessary to grant a mandatory injunction. The first appellate court has found that there is no evidence of the plaintiff as to since when such water is being discharged and in the absence of the positive evidence, no injunction can be granted against the defendants. It appears that the door was fixed since 1961. There is, therefore, every reason to hold that the pipe also must have have been fixed there at that time. No other evidence has been tendered by the parties with regard to the time of fixing of the pipe where the water is to be discharged. The plaintiff has not come out with the case that the water of the defendants' house is discharged in a different way and it was never prior to institution of the present suit in this manner. I do not find that there is any perversity in the judgments of courts below. There is no substantial question of law is involved in the appeal. It is dismissed. JUDGE chute 4