CHANDRAKANT PUTU DESSAI Vs. SAYYED IBRAHIM

JUDGEMENT

(1.) THE appellant has filed the present second appeal challenging the judgment and decree dated 26. 06. 2008 passed by the learned Ad hoc District Judge-II, South Goa, Margao in Regular Civil Appeal No. 53/2008 dismissing the appeal against the judgment and decree dated 11. 04. 2008 passed by the learned Civil Judge, Senior Division, Quepem in Regular Civil Suit No. 12/1995.

(2.) THE appellant herein filed the above suit against the respondents / defendants seeking permanent and mandatory injunction. According to the plaintiff, the defendants had constructed soak pit and septic tank in violation of building bye-laws by not keeping distance of 15 metres on account of which the dirty water from the soak pit, was percolating in the well thereby contaminating the water in the well which was being used by the plaintiff, his family members and local residents in case of emergency. The suit was contested. The Trial Court upon appreciation of evidence led by the parties held that the plaintiff was not able to prove that on account of the use of soak pit and septic tank by the defendants, the water from the suit well was contaminated. The Trial Court also held that the plaintiff had not proved that the soak pit and septic tank were constructed in violation of building bye-laws and consequently the Trial Court dismissed the suit. The Appellate Court also held that the plaintiff had not established that by the use of soak pit and septic tank by the defendants, the water in the well was getting polluted.

(3.) MR. Kakodkar, learned Counsel for the appellant submitted that both the Courts below, have erred in relying upon the evidence of the Commissioner Shri Premanand S. Phaldessai, who was appointed by the Court to measure the distance between the well and soak pit since his appointment was limited for the purpose of deciding the temporary injunction application and since he was not examined as a witness, his evidence could not have been relied upon by both the Courts below. He further submitted that the evidence of Dr. Vishnu Vaidya, who was appointed as Commissioner to examine the quality of the water in the well, does not inspire confidence. According to the learned Counsel, the plaintiff / appellant has established by leading cogent evidence that the construction of soak pit and septic tank, was in violation of building bye-laws and further that by the use of the said soak pit and septic tank, the water in the well of the plaintiff, was getting polluted. Mr. Kakodkar submitted that the Appellate Court has not formulated the points for determination under Order XLI, Rule 31 of Civil Procedure Code. Therefore, the impugned decree is liable to be set aside. He therefore, submitted that the appeal be admitted on the substantial questions of law formulated in the memo of appeal.