A.P. BHANGALE, J.

1. Heard submissions at the bar advanced on behalf of the learned Counsel for the appellant.

2. This Second Appeal is preferred against the Judgment and Order passed by the Principal District Judge, Amravati, dated 5.3.2014 in Regular Civil Appeal No. 2 of 2008 whereby after setting aside the Judgment and Order passed by the trial Court in Regular Civil Suit No. 107 of 1998 passed by 6th Joint Civil Judge (Junior Division), Amravati on 24.10.2007, the learned 1st Appellate Judge dismissed the suit for possession and removal of encroachment and granted perpetual and mandatory injunction directing the defendant to stop flowing of rain water falling on terrace of the plaintiff and to divert the rain water falling from the outlets mentioned as D1 to D3 away from the approach way.

3. The learned Counsel for the Appellant invited my attention to the fact that the suit was instituted by the plaintiff in respect of the plot admeasuring 3200 sq. ft. bearing plot No. 17, Sheet No. 48 at mouza Tarkheda, pragane Badnera, Tq. and District Amravati known as Khaparde Garden area. The plot was purchased by the plaintiff under registered sale deed dated 16.1.1995 vide Index No. 189 of Sub-Registrar, Amravati, City-2 with a house built thereon and including approach road admeasuring about 61 ft. long x 10 ft. width. According to the learned Counsel for the appellant, there was a map in respect of suit property attached to the sale deed itself which was registered sale deed. The said plot is bounded on eastern side by plot of Dr. Dakre, on western side by Savatri Bhawan Chawl, on northern side by the plot of defendant and on the southern side by the plot of Dr. Mudliar and Dr. Deshmukh. Thus, despite full description of the suit plot and map, it is case of the plaintiff that the defendant had encroached upon her land to the extent of 2 ft. x 8 ft. and this was shown in the map annexed with the plaint. Continuous encroachment was alleged on the part of the defendant. It was increased to the extent of 94.25 sq. ft. The defendant had also constructed drain affixing pipeline on the terrace and leaving its outlets open in such a way that rain water from the terrace of the defendant was falling on the plot of the plaintiff, for which Municipal Corporation had also issued notice to the defendant calling upon her to remove unauthorised construction, which notice was challenged by her in Regular Civil Suit No. 408 of 1997. But that suit was dismissed. The defendant had also filed one Civil Suit No. 6 of 1996 against the plaintiff in collusion with residents of Savatri Bhavan building. That suit was also dismissed.

4. The grievance of the plaintiff about encroachment made by the defendant since 6.1.1996 continued. Therefore, the plaintiff had sought permanent injunction to restrain the defendant from diverting flow of the rain water falling on the house. According to the defendant, Judgment in Regular Civil Suit No. 408 of 1997 has no concern with the dispute in question. She had preferred appeal bearing Regular Civil Appeal No. 100 of 2004 against dismissal of the suit. The defendant had denied the alleged encroachment made by her. The learned trial Judge found that the plaintiff had failed to establish fact of encroachment made by the defendant as shown in the plaint map EFG/ELM. The trial Court also decided the issue against the plaintiff about alleged illegal construction made by the defendant and the pipeline constructed keeping open outlet and allowed accumulation of water in her land. According to the learned Counsel for the appellant, he had made an application for appointment of competent Surveyor so as to find the extent of encroachment made by the defendant after measurement of the suit property in presence of parties. However, that application was rejected by the trial Court, though it was a boundary dispute in respect of the suit property and the encroachment was alleged on the part of the defendant. The entire case