- (1.) THIS is a plaintiff's appeal against the appellate judgment and decree of the learned Civil Judge, Baran, dated the 7th of May, 1959.
(2.) THE suit out of which this appeal has arisen was filed by Ratanlal plaintiff against Shri Sweetambar Jain Temple Rooms Nos. 1 and 2, situated in Chhabra and its managers Pannalal and Hukamraj on the 14th of August 1951 in the court of the munsiff, Chhipa Board. THE house of the plaintiff lies in the south and a shop of the defendant abuts on the north. According to the plaintiff, there were six windows in the upper three rooms of the northern wing of his house and two of the windows were towards the east of the eastern-most room hereinafter to be referred to as Room No. 4. THEse windows have been shown on the plan (Ex C. 2) prepared by the Munsiff on inspection, by the letters 'c' and 'd', THEre were two windows in the northern wall of Room No. 4, shown by letters 'i' and 'j' on the same plan. In the remaining two rooms, hereinafter to be referred to as Rooms Nos. 5 and 6, there was one window 'k' in Room No. 5 and another window 'l' in Room No. 6, shown in Ex. C. 2. THEre were six moris, shown by letters 'e' 'p', 'q', 'r', 's' and 't' in Ex. C. 2 in the said three rooms. THE plaintiff complained that the defendant had converted their katcha shop into a pucce a one and the ground floor had already been constructed and in constructing the first floor on the eastern side, they had closed the windows 'c and 'd' and the mori 'e' and were proposing to construct towards the north of the rooms Nos. 4, 5 and 6 from which it was apprehended that the windows 'i', 'j', 'k', 'l' and the moris would be closed. According to the plaintiff, he had acquired a right of easement by continuous and uninterrupted user in a peaceful manner for more than 20 years before the suit with respect to these windows and the moris in dispute. THE plaintiff, therefore, prayed that the constructions obstructing the windows 'c and 'd' and the moris 'e' be removed and the defendants be restrained by a permanent injunction from further building anything which might obstruct the windows 'i','j', 'k' and 'l' and the moris, 'p', 'q,', 'r', 's' and 't' The defendants denied that the moris and the windows in question had been in existence for more than 20 years. They said that the windows were opened about 10 or 11 years back and that the defendants at once took objection to them on which they were closed by the plaintiff. As regards the moris, it was pleaded that it had been settled between the parties that only two moris would continue towards the defendants shop and that whan the defendants would construct the shop, the water of these two moris would be allowed to be discharged from over the wall of the defendants' shop towards the plaintiff's house. Learned Munsiff framed only two issues which when translated into English, run as follows : - (1) Whether the plaintiff has acquired right of easement with respect to the windows and moris in dispute and therefore the defendant cannot close these windows and moris by making constructions in the shop; (2) Relief. Both the parties produced oral evidence. The defendant also produced an agreement (Ex. D. l) dated the 29th of July 1922. Learned court of first instance also inspected the locality and prepared a plan (Ex. C. 2 ). A commissioner had also been appointed during this suit whose report dated the 9th of September 1951 is on the record of the case. Learned Munsiff found that the plaintiff's right of easement either with respect to the windows or the moris had not been proved. It was found that only two moris were allowed to continue by virtue of Ex. D-l and all that the plaintiff was entitled to, was that the water from these moris should be allowed to be discharged towards the defendants' house from over the wall of the defendants' shop. The suit was consequently dismissed by the judgment: dated the 22nd of December 1952. The plaintiff went in appeal but the learned Civil Judge, Baran dismissed the appeal and maintained the decree of the first court by the judgment dated the 7th of May 1953. The plaintiff has come in second appeal. I have heard Shri D. P. Gupta on behalf of the plaintiff-appellant and Shri N. M. Kasliwal on behalf of the defendant-respondent. It has been argued by Shri Gupta that the lower court were wrong in holding that the windows and moris in question had not been in existence for more than 20 years and that no right of easement through them has been acquired by the plaintiff. It was argued that lower courts did not consider the evidence of an important witness Bheron-lal at all and did not pay proper heed to evidence of Hansraj (D. W. 5) and Gordhan (D. W. 3 ). It was argued that courts have also recorded their findings against the report of the commissioner and the inspection note of the learned Munsiff himself. It was argued that is was proved by the evidence of Bheronlal (P. W. 2) that the defendant's house had been constructed in the year Smt. 1974 and that for the last 35 years, he had been seeing the windows and the moris in question. It was argued that none of the two lower courts has expressed their opinion about the evidence of this witness, and that the lower appellate court has not even said in its judgment as to what the evidence of this witness was. Further, it was argued that Gordhan (D. W. 3) had admitted that the defendant's house was in existence 3 or 4 years before Smt. 1980 and that Hansraj (D. W. 5) had stated that the defendants' house was constructed 20 or 25 years before the date of his statement and that at that time all the windows were open. It was argued as regards the moris that merely because an agreement had been executed, the plaintiff would not lose his right of easement if he continued to enjoy that right for the prescribed period in spite of the agreement. It was argued that there was no evidence on the record to show that four of the moris were closed after the agreement (Ex. D. 1 ). I have considered the arguments of learned counsel. There is no doubt that the lower appellate court has not adverted to the evidence of Bheronlal. The first court has said in its judgment what the witness Bheronlal had said but it has not given its opinion as regards the value of this witness' evidence. The question, however, is whether in the circumstances of this case, it is open to the plaintiff-appellant to challenge the concurrent finding of fact of both the lower courts on the ground that the evidence of Bheronlal has not been properly discussed and assessed. It may be noted that there is not a word in the grounds of appeal showing that the plaintiff-appellant challenged the concurrent finding of fact of the two lower courts on the ground that the evidence of a material witness had not been considered. Even in the lower appellate court no ground was taken that no assessment had been made of Bheronlal's evidence by the first court. If a party wants to challenge a finding of fact in second appeal on the ground that a particular evidence has not been considered or has been mis-read or mis-interpreted, it is its duty to say in the grounds of appeal that the evidence of particular witness, which was necessary has not been taken into account by the lower courts in arriving at a finding of fact, or that the evidence of a particular witness has been misread or mis-interpreted. Ordinarily, a finding of fact cannot be challenged in second appeal. As the plaintiff appellant did not indicate in his grounds of appeal that he was going to take up the point that the evidence of Bheronlal was not considered or properly assessed by lower courts, I was not bound to go through the evidence of this witness. However, the evidence of this witness was read out and on a consideration of the evidence of this witness, I can say that if the lower courts have not taken his witness' evidence into account, they have not committed any error in law. So far as the first appellate court is concerned, it appears that no stress was laid upon the evidence of this witness, otherwise it is improbable that is would not have discussed the evidence of this witness and given its opinion about the value of his evidence. It appears that at least in the first appellate court the plaintiff himself considered the evidence of this witness to be of no great value to him. Even taking into account what this witness had said, I find his statement is improbable. According to him, the defendants' house had been constructed in Smt. 1974 and the moris and the windows in question had been opened at that time. Smt. 1974 would correspond to the year 1916 or 1917. If the plaintiff had opened the windows in question before the year 1922, the defendants would not have been slow to take objection to those windows as they had taken objection to the moris. Then if the defendants safeguarded his interest with respect to the two moris out of six by the agreement (Ex. D. 1), there is no reason why he should not have safeguarded his interest with respect to the windows if they were in existence then. Ex. D. 1 was executed manifestly for the purpose that there may remain no dispute between the parties with respect to any easement. The fact that there is nothing about the windows in the agreement (Ex. D. 1), is a strong circumstance which shows that the evidence of Pannalal (D. W. 1) is true that at the time of the agreement (Ex. D. l), the windows were not in existence. It, therefore, appears that at least in the year 1922 when the agreement (Ex. D. l) was executed, the windows in suit were not in existence. The evidence of Bheronlal is therefore not believable. If the windows were not in existence in the year 1922, it was for the plaintiff to prove in which year they came into existence which he has failed to do. It has been vaguely said that they were opened 20 or 25 years before the suit but that would not be sufficient. There may be a mistake of a year or so or more while giving period by estimate. From Gordhan's evidence, it cannot be gathered that the windows had been in existence for more than 20 years before the suit. Hansraj, of course, said that he had seen the defendants' house being constructed about 20 or 25 years before the date of his statement and that at that time windows had been opened. The evidence of this witness was evidently wrong because the house of the plaintiff was not constructed 20 or 25 years before the date of his statement but about 35 years before it. I cannot, therefore, find any legal error if in the judgments of the two lower courts the evidence of this witness has not been acted upon. So far as the windows are concerned, I cannot find any legal defect in the judgments of the two lower courts in giving a finding that it was not proved that the windows in question had been opened 20 years before the suit. In this view of the matter it is not necessary for me to go into the question as to when one or more of them were closed by temporary or permanent device. Coming to the questions of moris, Ex. D. l no doubt shows that there were more than two moris in existence on the 29th of July 1922, the date of the execution of the agreement. The plaintiff however, undertook to close all the moris besides the two and the then manager of the defendants' temple agreed to let the water of the two moris flow towards the house of the plaintiff from over the wall of the defendants. It was argued by Shri Gupta that even in spite of this agreement, the moris were not closed. However, from the evidence of Pannalal (D. W. I), it is quite clear that all other moris excepting the two, were closed after the agreement. It is, therefore, idle to argue that there was no evidence whatsoever on the record to show that all other moris excepting two,were closed after the agreement. Of course, so far as the two moris are concerned according to the agreement between the parties, their water should be allowed to flow from over the defendants' northern wall towards the plaintiff's house. It is clear from the evidence (Ex. D. 1 ). However, as the plaintiffs have been allowed to flow water of the two moris towards their house from over the wall of the defendants' shop, I consider it proper that the defendants be ordered to allow the water through the two moris 'q' and 'r' of rooms southern wall of the defendant's house towards the plaintiff house.
(3.) THE appeal is partly allowed and the decree of the lower courts is modified in that the defendants are restrain by a permanent injunction from obstructing the flow of rain water through the moris 'q' and 'r' from over the defendants' wall towards the plaintiff's house. Considering that the plaintiff's suit substantially fails, he shall bear costs of all the courts. .;