In the instant case lower court has given a just conclusion.

The defendants, unable to resist the suit filed by the plaintiff/respondent, successfully before the courts below, have filed this second appeal.

2. The plaintiff/respondent had filed the suit for declaration that she is entitled to the drainage channel, indicated as 'C D E F' in the plaint plan and for a consequential relief of permanent injunction against the defendants on the grounds that she is the absolute owner of the suit property, including the drainage channel, in which the defendants/appellants have no right of any kind to interfere; but contrary, they are attempting to lay a claim, which should be prevented by way of declaration, followed by permanent injunction.

3. The appellants/defendants, questioning the averments in the plaint in toto, would contend that for the last several years, the parties were draining the drainage water through the suit drain, that this customary right was attempted to be prevented by the plaintiff by illegal method, by laying a pipe, which was prevented, that in the common drain situate in the common lane, the plaintiff has no right, either to obliterate it or alter the character, in order to construct a new drain and therefore, prayed for the dismissal of the suit.

4. The trial Court upon considering the oral evidence of P.Ws.1 & 2 as well as D.Ws.1 & 2, in addition to the documentary evidence, came to the conclusion that the suit property, inclusive of the disputed drain belongs to the plaintiff/respondent, that the defendants/appellants, who claimed common right over the said lane, is not entitled to claim easmentary right, which is mutually contradictory, and that they have failed to prove by adducing any acceptable evidence, to lay a claim over the suit property. In this view of the matter, accepting the plaintiff's case and as such rejecting the defence in toto, the trial Court decreed the suit on 4.4.1991 in O.S.No.628/1988.

5. The defendants aggrieved by the decision rendered by the trial Court, impugned the same before the Sub Court, Coimbatore in A.S.No.166/91 unsuccessfully, as seen from the judgment dated 10.12.1991, which gave cause of action for them, once again to come to this Court, as appellants.

6. This Court while admitting the second appeal, framed the following substantial question of law:

"Whether the courts below were right in decreeing the suit without proper appreciation of the report of the Commissioner, Ex.C.5?"

7. Heard the learned counsel for either side.

8. The disputed property is a drainage channel, indicated as 'C D E F' in the plaint plan. The plaintiff/respondent, as the owner, filed the suit for declaration and injunction, succeeded, despite the resistance by the appellants. Both the courts below appreciating the oral and documentary evidence, have rendered a concurrent finding, based on facts and therefore, it is not ordinarily assailable. But impugning the said finding, the second appeal has been filed, as if substantial question of law is involved, as aforementioned. A mere reading of the point formulated would indicate, that there would be no substantial question of law and the required materials, to decide the above points are only facts. The facts, based on evidence, have been decided by the courts below and therefore, this Court, sitting in the second appeal, is not expected to reassess the same or to reappreciate the same.

9. True, Section 100 C.P.C. provides second appeal, provided substantial question of law is involved and mandating the Court to formulate the same, thereby directing the respondent to argue that the case does not involve such a question. Prima facie, if it is brought to the notice of this Court that the courts below have not properly appreciated the evidence on record and came to the incorrect conclusion, thereby they rendered a finding contrary to the facts, perverse in nature, unsustainable in law, then power of the High Court is not curtailed, to reassess or to reappreciate the evidence on record, in order to render re