JUDGMENT
J.S. Narang, J.
1. The plaintiff-respondents filed a suit for issuance of permanent injunction restraining the defendant-appellant from interfering in the peaceful use and enjoyment of the drain shown green in colour and marked A, B and C and at point A and B by dismantling the kacha drain by covering it underneath the proposed manger (Khurli) shown red in colour and also reducing the yellow colour in plan and also issuance of mandatory injunction directing the defendant-appellant to remove this Khurli in dispute which had been built during the pendency of the suit.
2. The parties completed their pleadings before the trial Court and thereupon issues had been framed and that the respective parties led oral as well as documentary evidence. Upon perusal of the evidence and the respective pleadings of the parties, the issue wise finding has been returned by the trial Court, cumulative effect of which is that the suit filed by the plaintiff-respondents had been dismissed vide judgment and decree dated 9.12.1980. Being dissatisfied with the judgment and decree of the trial Court, an appeal had been filed before the lower Appellate Court. The appellant Court has observed that the findings on issue Nos. 1 to 3 and 5 to 7 have been given in favour of the defendant-respondent and that issue No. 4 was found in favour of the plaintiff-respondent and as a result thereof, the suit had been dismissed. The Appellant Court has essentially discussed Ex.PW2/l, copy of Shajra Shikni prepared by Halqa Patwari as this evidence had been rejected by the trial Court on the premises that the Halqa Patwari had not brought the original Shajra at the time of making the statement before the trial Court. It has been held by the lower Appellate Court that if the aforesaid document is read in conjunction with the said plaint Ex.P1 and D1, no/room for any doubt would be left. Thus, the existence of the street having not been disputed by the defendant-appellant, the matter remains to be examined is the length of the street. The width of the street is 5 feet and if the existence of the street is accepted and the length is also determinable to the extent of 99 feet from the pucca road, the existence of the drain entering the street at point “A” cannot be ruled out and that the blocking of the same by construction of Khurli as shown in Ex.Pl can also not be ignored. However, the lower Appellate Court has categorically mentioned in para No. 8 of the judgment that at the time of spot inspection by the lower court, no drain was seen in existence but the inspection report has been dewatered on the premises that there was 5 feet wide lane passing along the western side of the house of the plaintiff-respondent and that the same continue to run up to 99 feet starting from the southern road. The plea of the plaintiff-respondent is that the defendant-appellant had constructed khurli alongwith a wall in order to extract the drain water. The lower Appellate Court has observed that the plaintiff-respondents have been successful in proving on the file that there was 5 feet wide lane alongwith the western wall running to a distance of 99 feet starting from the southern pucca road. Upon establishment of this fact, the plaintiff-respondents were entitled to make use of same and that they can carry their drain through said street alongwith their wall. The defendant-appellant therefore, had no right to make any kind of obstruction in the street. As a sequel thereto, the appeal of the respondent had been accepted and as a result thereof, the suit has been decreed vide judgment and decree dated 28.9.1981.
3. Dissatisfied with the aforesaid judgment of the lower Appellate Court, the present appeal has been filed. It is averred that the appellate Court has erred in law in holding that a copy of the Shejra Shikni Ex.PW2/1 is admittedly in evidence merely because the defendant did not ask him to produce the original at the time of cross-examination. It is further averred that the lower Appellate Court has not examined the evidence in the correct perspective and that the judgment and decree of the trial Court has been set aside merely on conjectures and surmises.
4. Learned counsel for the appellant has argued that in fact the trial Court had inspected the spot and the note in this regard had been prepared wherein it is contained that there is no drain in existence and that this note of the trial Court is readable as a substantive piece of evidence in view of the specific provision contained in this regard, i.e., Order 18, Rule 18 C.P.C. In view of the note of the trial Court, the drain being not in existence, no relief would be grantable to the plaintiff-respondent. The lower Appellate Court has therefore erred in brushing aside the substantive piece of evidence and therefore came to erroneous conclusion while decreeing the suit of the plaintiff-respondent.
5. On the other hand, learned counsel for the respondent has contended that the perusal of the inspection mode of the trial Court does not demolish the case of the plaintiff-respondent as note only refers to the existence of the drain but does not wipe out the existence of street as the same has not been denied by the defendant-appellant. The said plan Ex.D1 shows, that a street marked as ‘A’ ‘B’ ‘C’ and ‘D’ starting from the road is in existence and that if the Shajra Shikni i.e., Ex.PW2/1 read in conjunction in site plan Ex.Pl and D1 doubt would creep in that there is no street. The street is in existence and that no specific drain having been made would not non-suit the claim of the plaintiff-respondent. This fact has been clearly left out by the trial Court and the finding has been given accordingly which culminated into dismissal of the suit filed by the plaintiff-respondent. The lower Appellate Court has examined the matter in the right and correct perspective and has discussed the evidence read therein reversing the finding of the Trial Court and resultantly, decreeing the suit filed by the plaintiff-respondent.
6. After hearing learned counsel for the parties, I am of view that the appeal deserves to be dismissed. The heading of the plaint clearly shows that the dispute is not with regard to the existence of the street but is only with regard to enjoyment of the drain which is stated to have been dismantled by covering it underneath the proposed Manager (Khurli) by which the width of the street has been lessened to 5 feet. There is ample evidence, the perusal of which establishes the existence of the street. The lower Appellate Court has correctly taken note prepared by the trial court and has correctly observed that the trial Court did not find any drain in existence but the material question for determination is/was whether there was any 5 feet wide lane passing on the western of the plaintiff-respondent house upto the length of 99 feet starting from the southern road? In fact, the plaintiff-respondents have successfully proved on the Court file that there was 5 feet wide lane as stated above and that being so, they were not entitled to make use of the same and they were not entitled to make use of the same and they could also carry their drain through the said street alongwith their wall as has been exhibited as Ex.P1. The defendant-appellant has no right to make any kind of obstruction in the street and so also the shortage of the water through the same.
7. Since the finding of fact has been determined by the lower Appellate Court in the right and correct perspective, no interference is called for. The argument that the note of the trial Court which has been prepared, upon instalment, by the Court itself has been brushed aside is absolutely incorrect. In fact, the lower Appellate Court has taken into consideration, the note of the trial Court which in no way dewaters the fact of existence of the street, the existence or non-existence of the drain would not affect the case of the plaintiff-respondent in any manner, The drain would even otherwise be the natural consequence as the existence of the Parnala has been admitted.
8. In view of the above there is no merits in the appeal and the same is dismissed.