Hon’ble B.C. Kandpal, J.

This second appeal under Section 100 of C.P.C. has been filed by the appellants against the judgment and decree dated 05.07.1999 passed by Special Judge (C.B.I./Additional District Judge), Nainital in Civil appeal No. 69 of 1988, Sri Shanker Lal Shah Vs Sri Vinod Kumar Shah & Others, arising out of judgment and decree dated 20.08.1988, passed by Munsif, Nainital in Civil Suit No. 15 of 1982, Shankar Lal Shah Vs. Vinod Kumar Shah.

2. Brief facts of the case are that the father of the appellants filed a suit before the Munsif, Nainital for perpetual mandatory injunction against the respondents/defendants. According to the plaint, the plaintiff/appellant was the owner of Prashant Hotel along with land and houses adjacent to the Hotel upto the vacant land of Sarita Bhawan. In its eastern side Nainital-Almora pedestrian road, western side Sarita Bhawan and Moti lodge, norther side Meghdoot Hotel and in the south Hotel Punjab are situated and the said land comes under the control of Nagar Palika, Nainital. The respondent No. 1 and 2 are the real brother and respondent no. 3 was their mother and the owner of the (nala) which was constructed by the Nagar Palika, Nainital, 80 years prior and the rain water passes through that Nala. This Nala passes through the properties of respondent nos. 1 to 3 and the water fell into the lake. The plaintiff also pleaded that he has been using the said Nala for the last 20 years with the knowledge of the defendants and he has perfected the easementary right for using the said Nala. The further allegation of the plaintiff is that the defendant/respondent Nos. 1 to 3 blocked the said rain by raising a wall and pillar and obstructed the flow of rainwater thereby violated the Municipal Law and byelaws. It has further pleaded that due to that construction the water seepage shall collectively and separately loosen the earth which has supported the property of the plaintiffs/appellants for more than 50 years and it is dangerous to the life of other persons residing adjacent in the said vicinity.

3. The defendant Nos. 1 and 3 filed their joint written statement before the trial court alleging therein that no such Nala was in existence for the last 80 years on the property in dispute, which was maintained by the Municipal Board, Nainital. It has further pleaded that the main building of defendants known as ‘Sarita Bhawan’ is constructed on a plot measuring 50 feet x 50 feet and the vacant plot measuring 40 feet x 50 feet is situated along with the back wall of the main building ‘Sarita Bhawan’. The defendants also contended that the building of Prashant Hotel is a recent construction and is at a distance of about 150 feet from the buildings of the defendant Nos. 1 and 3 and the height of the building is 25 feet. It has also alleged that the plaintiff intends to pass the dirty water from the property of the defendants/respondents. The plaintiff constructed a dining hall after cutting the hill-side and that construction has not caused any damage to Prashant Hotel but the plaintiff falsely apprehends damage to Hotel Prashant by raising a wall by the defendants at a distance of about 150 feet from Hotel Prashant. The defendants have further pleaded that they have taken loan from U.P.F.C. for the conversion of Sarita Bhawan into a Hotel and the work is in progress and due to this rivalry, the plaintiff filed the suit before the Munsif, Nainital. In case, if no Nala for letting out the rain water on the hill-side is constructed, the whole rain water will collect at the back side of the main building of Sarita Bhawan which shall certainly cause danger to the building of the defendants and keeping in view this fact, it is essential that rain water on the hill side be canalized by way of Nala, which may lead to the P.W.D. Nala in front of Sarita Bhawan. The defendants/respondents are constructing the stream as per orders of the Municipal Board and other authorities for their own purpo