P.S. Patwalia, J. - (1.) This present revision petition is directed against the orders dated 27th September, 2003 passed by the learned Additional Civil Judge, Fatehgarh Sahib and the order dated 5th April, 2004 passed by the learned Additional District Judge, Fatehgarh Sahib. The petitioner had filed a suit for permanent injunction restraining the respondents, their agents and servants from raising any sort of construction in the passage in dispute shown in Letters ABKN in the site plan attached with the suit. While deciding the application for interim injunction, the trial Court after examining the documents on record came to the following conclusions: "I have heard the ld.counsel for the parties and have also gone through the file carefully. Both the parties have claimed their possession over the suit property. But both the parties have not placed any documents on record except site plans which can show that which party is owner in possession of the suit property. Plaintiff claims that suit property is a passage and dirty/rainy water flows through the drains constructed in the said passage. On the other hand, defendants claim that suit property is not a passage which is in the ownership and possession of them and number of trees have been planted there which are more than 25 years old. As per site plan placed on file, defendants have been shown to be in possession of the land and they cannot be restrained from raising any type of construction on their own land. In view of above discussion, defendants cannot be restrained from raising type of construction on their own land which are in their possession. As regards, natural flow of dirty/rainy water, both the parties are directed to maintain status quo regarding natural flow of suit. My observations made herein shall have no effect on the merits of main suit." Aggrieved against the said findings, the petitioner preferred an appeal. The lower appellate Court recorded the following findings: "I have considered the rival submissions put forth before this Court. In the present case I find that the case of the plaintiff is mainly to the effect that the suit property in question is a passage and that the same was being used by the inhabitants of the village. The learned counsel for the plaintiff/appellant however has not been able to show any documents to this Court from which it could be inferred that the suit property is in the nature of passage. A perusal of the lower Court file shows that the plaintiff has not filed any jamabandi/khasra girdawari from which the existence of a passage could be discerned. The plaintiff has filed a copy of 'Akshshajra' but even a perusal of the same does not show that the suit property is a passage. As such, I find that there is no evidence to prime facie hold that the suit property is in the nature of a passage and thus there is no case for restraining the defendants from raising any construction upon the suit property. Thus, the order of the learned lower Court declining to grant of any injunction in this respect does not suffer from any infirmity and is upheld."
(2.) It is, therefore, apparent that both the Courts have given a concurrent finding that the plaintiff has not been able to produce any document before the Court from which it would prima facie prove that the suit property is in the nature of passage. He had filed a copy of the 'Akshshajra' but even a perusal of the same as found by the lower appellate Court, showed that the suit property was not a passage. Therefore, there is no basis or justification to assail the aforementioned concurrent findings of fact.
(3.) Learned counsel for the petitioner then submitted that flow of water was being obstructed. The findings of the Courts below, in this regard are already in favour of the petitioner. The trial Court even directed status quo to be maintained by the parties. The lower appellate Court again examined the matter. In para 13, the lower appellate Court recorded the following findings : "From the perusal of the above referred Section along with illustration (i), it is apparent that a land owner has right to enjoy subject the restriction and he has to allow natural flow of the water. In this context a reference may also be made to a judgment reported as 1992 Civil Court Cases 247 (M.P.) Satyanarayan v. Bhagwan wherein interpreting Section 7 of Easement Act held that in case the fields of parties are situated adjacent to each other, then the parties whose fields are higher in level would have right of natural easement of flow of water coming from other fields and also of water falling into fields of the parties whose fields are lower in the level and that in such circumstances the parties whose fields are lower in level cannot be permitted to rise artificial barrier in order to cause obstruction in flow of water which may lead to accumulation of water.";