JUDGMENT 1. - This is a defendant's second appeal arising out of suit for permanent injunction. It relates to the opening of four spouts by the defendant in his newly constructed house. The plaintiff and the defendant have their houses facing each other. There is a strip of land about 5 ft. in width the intervenes the two houses. The plaintiff too had purchased the property on 4th December, 1958 by virtue of Sale Deeds Ex. 1 and Ex. 2 on record - According to the plaintiff the intervening strip of land belongs to him and the defendant had no right to open the strips in his house so as to discharge water over this strip of land. The defendant contested the suit. He put the stress that in between the two houses there was a land which was meant for the discharge of rain water from the defendant's house as also from the neighbouring houses & the land did not belong to the plaintiff as claimed by him. It was further pleaded by the defendant that the defendant was only having a 'Nohra' and therefore no sustantial injury would be suffered by the plaintiff by the discharge of the water from the four spouts. The learned Munsif, Rajsamand before whom the suit was filed framed a number of issues, the principal one being whether the land in dispute was the property of the plaintiff or it was land to which the parties adduced their evidence but the learned Munsiff came to the conclusion that the plaintiff had not been successful in showing that the land belonged to him. In the result therefore he dismissed the suit. 2. Aggrieved by the decree of the learned Munsif the plaintiff went up in appeal to the court of the District Judge, Udaipur. The learned Civil Judge reached a contrary conclusion and consequently he accepted the appeal and reversed the decree of the learned Munsif and he granted a permanent injunction against the defendant for not using the spouts for discharging any kind of water towards, the plaintiff's house or his Nohra. It is in these circumstances that the defendant has come in second appeal to this Court. 3. It is in these circumstances that the defendant has come in second appeal to this Court. 3. Learned counsel for the appellant contends that the finding of the learned Civil Judge stands vitiated on account of serious errors of law, in that, he has taken into consideration matter which ought to have been excluded by him. The learned counsel points out that the recitals in the plaintiff's sale deed dated 4th December, 1958 which were recent could not be evidence of the fact as against the defendant who was no party to the sale deed that the land belonged to the plaintiff. Besides the sale deed the plaintiff had not produced any title deed. Then it was submitted that the learned Civil Judge could not have used the Commissioner's report as a kind of substantive evidence. The generally the learned counsel submitted that the various circumstances bearing on the question of the land being common ones for the benefit of the neighbours were not properly appreciated. The learned counsel drew attention to the fact that the other neighbours had their spouts the water from which was being discharged in this strip of land and further there was a latrine covering a good part of this intervening strip. Then, the learned counsel submitted that the learned Civil Judge had unduly emphasised the allignment of the defendant's house vis-a-vis his neighbours on the South. In old township like that of Rajnagar the lands were not expected to be straight, more so, when the topography was hilly and it was the rain water from the hill side that would be passing through the land. Then the learned counsel argued that the plaintiff had not produced his title deeds and although this circumstance has been taken into consideration by the Munsif the learned Civil Judge has not said a word about it. 4. I have heard both the learned counsel at length & have gone through the relevant record of the case. I find that the learned Civil Judge has not properly construed the effect of the two sale deeds Ex. 1 and Ex. 2. They are documents of title of the plaintiff. If in such documents there is a recital of the boundaries that would be no evidence against a neighbour and the ownership in the land has to be proved. I find that the learned Civil Judge has not properly construed the effect of the two sale deeds Ex. 1 and Ex. 2. They are documents of title of the plaintiff. If in such documents there is a recital of the boundaries that would be no evidence against a neighbour and the ownership in the land has to be proved. The learned Civil Judge has summarised his conclusions thus; "It is thus clear both from the site as well as from the Ex. A-1 and report of the commissioner itself and from the boundary mentioned in the sale deeds Ex. 1 and Ex. 2 and the failure of the defendant to produce his own sale deed and the lane not going further beyond M.N. there could have been no conclusion but that this land was part and parcel of the plaintiff's land. Trial court has thus erred is not giving proper appreciation of the site as well in reading correctly the import of Ex. 1 and Ex. 2 and the consequences of failure to produce the defendant's sale deed, the result is that issue No. 1 first part should have been decided in favour of the plaintiff." 5. Now I have made my observations regarding the recitals in the sale deeds Ex. 1 and Ex.2. The report of the Commissioner regarding the ownership of the land was only embodying the Commissioner's opinion and was not receivable in the case as substantial evidence. It is true the defendant had not produced his own title deed or sale deed but it has to be borne in mind that the defendant was not claiming this land as his own. It is not necessary that while mentioning the neighbourhood of the houses it should be mentioned precisely whether there is a land for the flow of rain water. The case discloses that there are certain positive circumstances which the learned Civil Judge has taken into consideration for holding that the land belongs to the plaintiff. Then, he has tried to explain away certain negative circumstances which militated against the land being the property of the plaintiff and then the learned judge has dealt with the reasoning of the learned Munsif. The positive circumstances are: 1. Non-mentioning of the land as the boundary of the plaintiff's property but instead the boundary towards the east being shown as the defendant's house; 2. The positive circumstances are: 1. Non-mentioning of the land as the boundary of the plaintiff's property but instead the boundary towards the east being shown as the defendant's house; 2. The defendant had not claimed this land as part of his land; 3. The defendant had not produced his own sale deed showing what was the position about the disputed strip or whether it was mentioned as a joint land or the land of the plaintiff's house; 4. The Commissioner submitted his report after preparing the site plau Ex.1. He said in his report that the land was a part and parcel of the plaintiff's Nohra of the house. The negative circumstances were dealt with by the learned Civil Judge in the following words. "It is no doubt clear from the evidence that rainy water from upper level marked as B and C plans through this lane and passed through the plaintiff's chowk through the gate Y. That rainy water from the roofs of Arjunlal Kistoorchand also falls on the plaintiff's land and there is a latrine at mark A which belonged to Anandilal Nandwana and at Z point also. The plaintiff's own spouts fall in this lane but had it been a common lane it should have been straight line from M.N. right upto the plaintiff's nohra towards the south. The commissioner could have dug out the earth and found but remains of the well, if any. On the other hand the admitted case is that the water which flows from this lane passes through the main gate of the plaintiff's nohra and not through the land in dispute. In fact, this lane ends at point N. The plaintiff's case is further that there is a wall at point X and before the defendant purchased the house there were only kutcha houses and whatever water came through this lane submerged in the defendant's kutcha house and did not pass through the plaintiff's chowk. However subsequently he permitted the water to pass through his own gate." 6. The above circumstances in my view help the defendant's case. However subsequently he permitted the water to pass through his own gate." 6. The above circumstances in my view help the defendant's case. The learned judge had not given due weight to the existence of spouts of other neighbours and to the fact that the rain water flows through this lane and in the roof above there is a Jatrine of Anandilal Nandwana at mark A. Nothing turns on the allignment of the houses being not in straight life. The learned Civil Judge was therefore not right in appreciating the negative circumstances. 7. Then, regarding the wall M N the learned Civil Judge had observed that the learned Munsif had made conjectures that the wall M N might have extended further towards the south. The learned Civil Judge has dealt with periodical and unimportant circumstances. No one verified whether wall M N did extend towards the south. If the commissioner had not dug the foundation to ascertain the correct position no conclusion adverse to the defendant could be drawn on that score. Having examined the relevant material therefore, I am satisfied that the learned Civil Judge was not justified in upsetting the conclusion reached by the learned Munsif particularly when he has not dealt with all the circumstances brought cut by the learned Munsif, such as the non production of his own vendor by the plaintiff. 8. In the result therefore I allow this appeal, set aside the judgement and decree of the learned Civil Judge, Udaipur and restore that of the Munsif dismissing the suit. Parties are left to bear their own costs in this court. 9. Learned counsel for the respondent orally prays for grant of leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 but as this is a case of petty nature I am not inclined to grant the leave which is accordingly refused. *******