BENIRAM SHRIRAM WANI Vs. RAMCHANDRA NATHALAL GUJARATHI

JUDGEMENT

(1.) Thi s appeal From Order is filed challenging the order dated 1.3.2000 passed by the learned Additional District Judge. Dhule in Regular Civil Appeal No.244 of 1987. The appellant herein and respondent Nos.3 to 5 are original plaintiffs and respondents Nos. 1 and 2 are the original defendants. The appellant and the respondents are adjacent land owners. The respondents are owners of double storeyed building. It is the case of the appellant that the respondents are discharging their waste water from tap in the open space which belongs to the appellant. There is one tap on the first floor and other two taps are on the ground floor. Because of this waste water, damages is caused to the land of the appellant and the land has become unused.

(2.) On 4.4.1976. a notice came to be served on the respondents. The appellant instituted R.C.S. No.69 of 1976 and prayed for injunction against the respondents. On 19.8.1987, R.C.S. No.69 of 1976 came to be decreed whereby the respondents are peimanently restrained from discharging the waste water from the taps and the respondents are directed to remove the taps. The respondents preferred Regular Civil Appeal No.244 of 1987. The said appeal came to be allowed and the matter is remanded back to the trial court. Hence, this Appeal from Order.

(3.) Learned cou nsel appeari ng for the appellant submitted that the provisions of Order 41, Rule 23 cannot be exercised in casual manner that the judgment and decree being liable to be set aside as perverse. Counsel further submitted that the trial court held that the plaintiff is owner of the suit property after considering the pleading of both the parties and evidence on record. It is further submitted that when the respondents have raised plea of easement, it was implicit that they accepted the ownership of the plaintiff over the suit property. Therefore, the appellate court was not justified in remanding the matter back to the trial court. It is further submitted that the suit is instituted in the year 1976 and the appellate Court passed the order of remand in the year 2000 i.e. after a period of 25 years, which causes great inconv enience and injustice to the appellant herein. It is further submitted that emphasis of the respondents in respect of title of the plaintiff over the suit property beyond reasonable doubt is misconceived. The appellate court without considering the legal provisions that the appellate court is also court of facts and law and neglecting this fact has remanded the matter back to the trial court.