JUDGMENT :

Mr. Mahendar Kumar Goyal, J. - This civil second appeal has been preferred against the judgment and decree dated 29.11.2017 passed by the learned Additional District Judge No.4, Bharatpur (hereinafter referred to as "the learned appellate Court") in Civil Regular Appeal No.29/2017 (CIS No.693/2014) whereby, while dismissing the appeal preferred by the appellant/defendant (for brevity "the defendant"), the judgment dated 20.03.2010 passed by the learned Civil Judge (Junior Division), Nadbai, District Bharatpur (for short "the learned trial Court") decreeing the Civil Original Suit No.19/2007 filed by the respondent/plaintiff (for brevity "the plaintiff") for mandatory and permanent injunction, has been affirmed.

2. The relevant facts in brief are that the plaintiff filed a suit for mandatory and permanent injunction against the defendant stating therein that he is under ownership and possession of a residential house situated in village Nagla Bahua Tehsil Nadbai, a part of his and defendant's ancestral property. It was averred that behind their residential houses, there is a Gali of four and a half feet width through which he has drainage to the public way from his house. Alleging that the defendant has encroached upon a part of the subject Gali obstructing passage of drain water, the decree as aforesaid was prayed for.

3. The defendant in his written statement, denying the averments made in the plaint, submitted that the subject Gali was under his exclusive ownership & possession and the plaintiff has no concern or right over it. Dismissal of the suit, therefore, was prayed for.

4. On the basis of pleadings of the parties, the learned trial Court framed five issues including relief. After recording evidence of the respective parties, the learned trial Court decreed the suit vide judgment dated 20.03.2010. The civil first appeal preferred there against by the defendant has been dismissed by the learned appellate Court vide judgment and decree dated 29.11.2017.

5. Assailing the impugned judgment and decree, the learned counsel for the defendant submits that from the Commissioner report, it was evident that he had ownership over the subject Gali and in view thereof, the learned Courts erred in decreeing the suit filed by the plaintiff. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 29.11.2017 be quashed and set aside and the civil suit filed by the plaintiff be dismissed.

6. Heard. Considered.

7. While decreeing the suit, the learned trial Court has held that from the ocular and documentary evidence led by the plaintiff; such as, order of the Gram Panchayat Karhi (Exhibit P-2), the Commissioner Report (Exhibit P-3) and the site plan prepared by the Commissioner (Exhibit P-4), it was apparent that the drain pipes from the plaintiff's house have opening towards the subject Gali. It was further observed that drain pipes from the defendant's house also have their opening towards the subject Gali. It was held that from the Exhibit P-2, it was also established that the defendant has obstructed the subject Gali by raising illegal construction of a wall which is liable to be removed. These findings have been upheld by the learned appellate Court vide judgment dated 29.11.2017 after re-appreciating the evidence on record. It was further held that the learned trial Court did not err in decreeing the suit relying upon the Commissioner Report against which the defendant did not file any objection. These concurrent findings of facts recorded by the learned Courts have not been shown to be suffering from any illegality, infirmity or perversity by the learned c