GHASI RAM Vs. SHIV DAYAL

JUDGEMENT

(1.) This is a plaintiff's second appeal against file decision of the learned District Judge of Rampur dismissing his suit for an injunction to restrain the defendant-respondent from discharging water through three parnalas on the first floor of the latter's house. The plaintiff alleged in his plaint that the defendant's house adjoined his and till 40 or 45 years ago it was a single-storeyed house. The plaintiff admitted that the house contained three parnalas through which rain water was discharged on the roof of the plaintiff's house which apparently was on a lower level. About 40 years ago the defendant's ancestors constructed a second storey and the parnalas were removed to the roof of the top storey. The plaintiff admitted that the defendant had been discharging rain water through the new parnalas on the plaintiff's roof and conceded his right to do so. But he complained that recently the defendant had re-opened the old parnalas on the lower floor which had remained closed since the construction of the second storey, and had commenced discharging every kind of dirty water through those parnalas. The plaintiff remonstrated but the defendant ignored his protests; hence the suit for the injunction. The defendant alleged that the old parnalas were never closed even after the construction of the second storey, but were used for discharging water from the floor of the new rooms. He claimed an easementary right with regard to these parnalas too.

(2.) The trial court believed the plaintiff's version and field that the old parnalas were closed up and had been recently opened by the defendant. It issued a permanent injunction restraining the defendant from discharging any water through the old parnalas. In appeal the learned Judge took a different view and held that the old parnalas had not been closed when the second storey was built and the defendant had been discharging the water used for the washing of the floors of the rooms through these parnalas. Accordingly, he held that the defendant had a prescriptive right of easement to discharge water through the disputed parnalas and dismissed the plaintiffs suit. The plaintiff has come to this court in second appeal.

(3.) Learned counsel for the appellant was unable to advance any reason which would entitle this court to reverse, in second appeal, the finding of the appellate court that the defendant had been discharging the water used for the washing of the floors of the rooms into the plaintiff's land. This finding, to my mind, is unsatisfactory and the learned Judge was not justified in interfering with the conclusions of the trial court which are far more cogent than his own. But, as held by the Supreme Court, this Court has no jurisdiction to interfere with any factual conclusion of the appellate court in an appeal under Section 100 C.P.C. I am therefore, bound by the finding that the defendant had been discharging the water used for the washing of the floors of the new rooms on the second storey into the plaintiff's land.