Kartar Singh vs Pritam Singh and Another

Hemant Gupta, J.—The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court on 02.11.1989, whereby the suit for permanent injunction for restraining the defendants from stopping the flow of water through the drain shown in the site plan attached with the plaint, was dismissed in appeal. The plaintiff alleged that earlier the defendant Pritam Singh was the owner of the area now in possession of the plaintiff as owner. The plaintiff and defendants executed exchange deed dated 21.12.1965. The plaintiff claimed that water coming out of the house of the plaintiff as well as defendants'' passes through the drain, shown in red in the plan attached with the plaint for the last 30 years. Such fact is mentioned in the exchange deed as well. The defendants intend to stop the flow of water, which effects the rights of the plaintiff and, thus, the plaintiff claimed a decree for permanent injunction.

The defendants contested the suit and admitted the exchange deed, but denied that the drain as alleged by the plaintiff existed for the last 30 years. It was pleaded that sullage and rainy water of the house of the defendant Pritam Singh flows from South to North, whereas rainy water and waste water of the house of defendant No. 1 -Pritam Singh, plaintiff -Kartar Singh and Raksha Rani, neighbourer has been passing through the said drain in the street and thereafter it fell into the path running from North to South after turning towards West. It was pointed out that water from the house of the plaintiff and Raksha Rani never flowed through the house of the defendant.

To prove his case, the plaintiff examined himself as PW-1 and produced exchange deed Ex. P1 and site plan Ex. P2 attached with the said exchange deed. The plaintiff also examined PW-2 Dalbir Singh, MHC, P.S. Kartarpur, who proved Ex. P4 i.e. Entry No. 29 in the daily diary of P.S. Kartarpur dated 01.03.1983 and PW-3 Pamma Lal, another resident of area. On the other hand, the defendants have examined DW-1 Roshan Lal and DW-2 Amar Singh in support of their case.

On the basis of evidence led by the parties, the learned trial Court decreed the suit of the plaintiff while returning a finding that the disputed street shown red in the site plan is in existence for the last more than 30 years. However, in appeal, the learned first Appellate Court recorded the following findings:

...A perusal of the recitals in the exchange deed in so far as the flow of water is concerned shows that the water from the house of party No. 1 would flow towards the southern side in between the houses of both the parties. The passage for the houses of the parties would be from north to south in between the houses of the Bhallas and the two parties shall not cause any obstruction to Rattan Singh etc. A perusal of the site plan Ex. P2 clearly shows that a passage leading from north to south existed between the houses of the parties and the flow of water of house that fell to the share of Kartar Singh was to be towards the southern side which would evidently mean that the water was to flow through the drain, the existence of which, of fource, has not been shown in site plan Ex. P2 by the side of the passage. Rattan Singh admittedly was not a party to the exchange deed and in the site plan Ex. P2 no drain is shown to be in existence through the house of Rattan singh, which is on the extreme northern side. Rather the parties to the exchange deed had undertaken not to obstruct the passage of Rattan Singh....

Learned first Appellate Court also recorded that, in fact, the whole house was one unit, which was purchased by the parties from Ram Dass in the year 1960 and thereafter the exchange deed Ex. P1 was executed btween Kartar Singh and Pritam Singh. It was, thus, found that the finding recorded by the learned trial Court that there was a drain in existence for the last more than 30 years remains shrouded in a mystery, as the sale deed in respect of purchase of the property has not been produced. With the said findings, the learned first Appellate Court accepted the appeal and dismissed the suit.

In the present second appeal, Learned Counsel for the appellant has sought to dispute the findings recorded by the learned first Appellate court by reappreication of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. The findings recorded by the learned first Appellate Court are findings of fact on the basis of evidence. Such findings of fact cannot be permitted to be disputed by reappreciation of evidence alone in the second appeal.

Consequently, I do not find that any substantial question of law arises for consideration by this Court on the basis of findings recorded. Dismissed.