( 1 ) THIS second appeal arises at the instance of the original defendant who has challenged the decision dated 20th October, 1976 arrived at in Regular Civil Appeal No. 86 of 1974 by the Assistant Judge, Ahmedabad (Rural) at Narol whereunder the appeal was allowed and the cross objections were rejected.

( 2 ) THE plaintiff alleged in Regular Civil Suit No. 134 of 1972 that the property of the defendant bearing city survey No. 2959 of Dhandhuka town was to the west of the plaintiffs property, that the said property of the defendant originally had a roof at a height of about 10 11/2and the rain water of the eastern eaves of the said roof was discharged on the plaintiffs property, that the defendant constructed a new house on the said survey number and at that time raised the said height, put up a terrace with two spouts of about one foot each in length and at a height of about 15 for the purpose of discharging rain water, and that the distance between the said spouts was of 10 1/2. In the circumstances, the plaintiff contended that the said right of easement of the defendant to discharge rain water was extinguished and further that additional burden would be created upon his property if the defendant was permitted to discharge rain water from the said spouts. The reliefs claimed in the said suit were regarding removal of encroachment by way of a mandatory injunction in that connection, as also a permanent injunction against the defendant restraining him from discharging rain and other water from the aforesaid two spouts. The said suit was resisted by the defendant.

( 3 ) THE plaintiff vide Exhibit 6 in the suit had prayed for an interim injunction restraining the defendant from discharging rain water from the said two spouts. After hearing the parties, the trial court disposed of the said application on 30th October, 1972 permitting the defendant to discharge rain water from the southern spout only and that too by means of a pipe right up to the ground level of the land. During the pendency of the suit defendant affixed the pipe accordingly. There is nothing to show that the plaint or the written statement was amended with the permission of the Court in keeping with the situation as per the aforesaid interim order. It is pertinent to mention that the Commissioner appointed by the trial Court has prepared a sketch, Exhibit 54, and the said Commissioner has deposed in the said suit vide Exhibit 53.

( 4 ) THE said suit was disposed of by the Civil Judge (Junior Division), Dhandhuka by a judgment and decree dated 29th October, 1974 whereunder the suit was partly decreed and the defendant was permanently restrained from operation his northern spout and from removing the pipe fitted with the southern spout as shown in the sketch, Exhibit 54.

( 5 ) FEELING aggrieved by the said judgment and decree, the plaintiff preferred Regular Civil Appeal No. 86 of 1974 and the defendant preferred cross objections. The Assistant Judge, Narol allowed the appeal and rejected the cross objections by a judgment and order dated 20th October, 1976 wherein the partial decree passed by the trial Court was set aside and inter alia the defendant was directed not to discharge rain water of his terrace from the two eastern spouts on the plaintiffs property.

( 6 ) ISSUES Nos. 4 and 5 framed by the trial court and the findings thereon are as under:"issue No. 4: Whether the plaintiff proves that the defendant has constructed a new house having height of about 17 feet raising from 101/2 feet as actually it was and had placed two spouts at 15 in height in east of one foot in length at a distance of 101/2 feet thereby encroached the land of plaintiff by 1 east-west and 101/2 feet north-south and wants to discharge rain-water and other water through the said spouts by creating new easement right and thereby effected permanent alteration in his house and increased the burden on his land?"finding on Issue No. 4: "yes, height is increased from 101/2 feet