JUDGMENT:

This second appeal is filed against the Judgment and decree dated 24.02.2004 in A.S.No.2 of 2003 passed by the learned Senior Civil Judge, Medak, in which the Judgment and decree dated 30.10.2002 in O.S.No.31 of 2000 passed by the learned Junior Civil Judge, Medak was confirmed.

2. Initially, respondent/plaintiff had filed a suit vide O.S.No.31 of 2000, for perpetual injunction and later by way of amendment, modified it as mandatory injunction directing the appellant/defendant to close the dug hole admeasuring 4 feet height and 1 ½ feet width, which is on the western side of the open place of the respondent’s house. The trial Court after considering the arguments of both sides, decreed the suit. Aggrieved by the said Judgment and decree, defendant therein preferred an appeal before the first appellate Court, but the same was also dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, defendant before the trial Court preferred the present appeal.

3. The learned Counsel for the appellant/defendant raised the following substantial questions of law:

“a) Whether the Courts below erred in considering the report of the Advoc