R. J. SHAH, J. ( 1 ) THIS second appeal arises at the instance of the original defendant who has challenged the decision dated 20th October, 1976 arrived at in Regular Civil Appeal No. 86 of 1974 by the Assistant Judge, Ahmedabad (Rural) at Narol whereunder the appeal was allowed and the cross objections were rejected. ( 2 ) THE plaintiff alleged in Regular Civil Suit No. 134 of 1972 that the property of the defendant bearing city survey No. 2959 of Dhandhuka town was to the west of the plaintiffs property, that the said property of the defendant originally had a roof at a height of about 10 11/2and the rain water of the eastern eaves of the said roof was discharged on the plaintiffs property, that the defendant constructed a new house on the said survey number and at that time raised the said height, put up a terrace with two spouts of about one foot each in length and at a height of about 15 for the purpose of discharging rain water, and that the distance between the said spouts was of 10 1/2. In the circumstances, the plaintiff contended that the said right of easement of the defendant to discharge rain water was extinguished and further that additional burden would be created upon his property if the defendant was permitted to discharge rain water from the said spouts. The reliefs claimed in the said suit were regarding removal of encroachment by way of a mandatory injunction in that connection, as also a permanent injunction against the defendant restraining him from discharging rain and other water from the aforesaid two spouts. The said suit was resisted by the defendant. ( 3 ) THE plaintiff vide Exhibit 6 in the suit had prayed for an interim injunction restraining the defendant from discharging rain water from the said two spouts. After hearing the parties, the trial court disposed of the said application on 30th October, 1972 permitting the defendant to discharge rain water from the southern spout only and that too by means of a pipe right up to the ground level of the land. During the pendency of the suit defendant affixed the pipe accordingly. There is nothing to show that the plaint or the written statement was amended with the permission of the Court in keeping with the situation as per the aforesaid interim order. During the pendency of the suit defendant affixed the pipe accordingly. There is nothing to show that the plaint or the written statement was amended with the permission of the Court in keeping with the situation as per the aforesaid interim order. It is pertinent to mention that the Commissioner appointed by the trial Court has prepared a sketch, Exhibit 54, and the said Commissioner has deposed in the said suit vide Exhibit 53. ( 4 ) THE said suit was disposed of by the Civil Judge (Junior Division), Dhandhuka by a judgment and decree dated 29th October, 1974 whereunder the suit was partly decreed and the defendant was permanently restrained from operation his northern spout and from removing the pipe fitted with the southern spout as shown in the sketch, Exhibit 54. ( 5 ) FEELING aggrieved by the said judgment and decree, the plaintiff preferred Regular Civil Appeal No. 86 of 1974 and the defendant preferred cross objections. The Assistant Judge, Narol allowed the appeal and rejected the cross objections by a judgment and order dated 20th October, 1976 wherein the partial decree passed by the trial Court was set aside and inter alia the defendant was directed not to discharge rain water of his terrace from the two eastern spouts on the plaintiffs property. ( 6 ) ISSUES Nos. 4 and 5 framed by the trial court and the findings thereon are as under:"issue No. 4: Whether the plaintiff proves that the defendant has constructed a new house having height of about 17 feet raising from 101/2 feet as actually it was and had placed two spouts at 15 in height in east of one foot in length at a distance of 101/2 feet thereby encroached the land of plaintiff by 1 east-west and 101/2 feet north-south and wants to discharge rain-water and other water through the said spouts by creating new easement right and thereby effected permanent alteration in his house and increased the burden on his land?"finding on Issue No. 4: "yes, height is increased from 101/2 feet to 17 feet but no encroachment proved. "issue No. 5: "whether the plaintiff proves that the right of defendant to discharge rain-water of eaves on plaintiffs land interfere with defendants right without which he cannot diminish the said burden as alleged?"finding on Issue No. 5: "right of easement of defendant not extinguished if present position is continued. "issue No. 5: "whether the plaintiff proves that the right of defendant to discharge rain-water of eaves on plaintiffs land interfere with defendants right without which he cannot diminish the said burden as alleged?"finding on Issue No. 5: "right of easement of defendant not extinguished if present position is continued. "6-A. So far as the trial Court is concerned, its judgment shows that it has approached the problem keeping in view the position which obtained as a result of the interim order passed by the trial Court. It has not considered the following, after finding that the height of the defendants house was increased from 101/2 to 17, that there were two spouts each of one foot in length at a height of 15 and at a distance of 10-9" from each other, that the eastern slope of the roof of the old house of the defendant was about 12, that because of the parapet in the terrace water of 31/2 area west to east fell on the plaintiffs land and that the quantum of rain water would be much less than formerly falling on plaintiffs land: "whether in view of the aforesaid findings the defendant materially increased the burden on the servient heritage which could not be reduced by the servient owner without interfering with the lawful enjoyment of the easement? If yes, whether the injury caused to the servient owner by the change is so slight that no reasonable person would complain of?"6-B. The following observations also in the trial Courts judgment in the opinion of this Court do not show (a) on reading the judgment as a whole, (b) in the absence of pleadings having been amended in keeping with the situation that arose as a result of the aforesaid interim order; (c) in the absence of a specific issue having been raised in that connection; and (d) in view of the finding as under: "as per the Commissionerss report and his deposition there was a parapet wall from a distance of 31/2 from the back wall on the east and water of 31/2 area west to east fell on the plaintiffs land. So the quantum of water of rain would be much less than formerly falling on plaintiffs land". that the aforesaid was considered. ( 7 ) POINTS Nos. So the quantum of water of rain would be much less than formerly falling on plaintiffs land". that the aforesaid was considered. ( 7 ) POINTS Nos. 2 and 3 for determination framed by the Assistant Judge, Narol and the findings thereon are as under:"point No. 2 is it proved that burden on the servient tenement of the plaintiff has materially increased and therefore easement right of the defendants property is extinguished?finding on Point No. 2 in the affirmative. POINT No. 3 is it proved that burden on the servient tenement would not increase if the water from the terrace of the defendant was discharged via pipeline?finding on Point No. 3 in the negative. " ( 8 ) WHILE deciding the said appeal, the learned Assistant Judge has arrived at the following findings of fact amongst others:"1. THUS in this case the plaintiff has been able to prove that the defendant has raised the height of his roof form 101/2 to 17 and has changed the slant roof with eaves to a flat roof and began to discharge rain water of the terrace by two spouts which were at a distance of about 10 from each other. 2. IT has been argued by Shri Shah that previously the water of the entire eastern eaves which had east-west breadth of 14 was being discharged upon the plaintiffs property whereas after the construction of new house, water from the terrace on the width of 31/2 was only discharged upon the plaintiffs property and therefore it should be held that burden has not materially increased upon the plaintiffs property. In this connection, it may be mentioned that the defendant has come forward with a case that water of the width of 31/2 from his terrace was only discharged by means of two spouts abutting upon the plaintiffs property. His version in this behalf has not been specifically controverted by the plaintiff. Even the map Exhibit 54 shows that there is a Pali of the Width of 10" running north to south at distance of 31/2 from the eastern Pali of the terrace. Hence the version of the plaintiff that water from that much portion of the terrace is being discharged through the two spouts required to be accepted. 3. BUT it is pertinent to note that the defendant has not given the height of this Pali. Hence the version of the plaintiff that water from that much portion of the terrace is being discharged through the two spouts required to be accepted. 3. BUT it is pertinent to note that the defendant has not given the height of this Pali. Even the Commissioner has not mentioned the height of Pali. The plaintiff would not know about any change made in the height of this Pali. 4. AGAIN it is pertinent to note that because of the increase in the height of the foot from 101/2 to 17-9" the flow would come with more force. Hence there would be no real effect of reduction in area. " ( 9 ) SO far as the appellate court is concerned its approach to the problem has bot been in keeping with the requirements of Section 43 of the Easement Act. It has given no finding in keeping with Section 43 (d ). It has not occurred to the appellate court that it was required as per evidence to consider the question in the light of the evidence that the rain water was falling from the height of 15 feet and not from the height of 17-9" as found by it as stated above. It is therefore open in the aforesaid circumstances to this Court in the present second appeal in view of Section 103 of the Code of Civil Procedure to frame the following substantial question of law instead of the one formulated by this Court at the time of admission:"whether on the facts and in the circumstances of the case and in view of the provisions of Section 43 and others of the Indian Easements Act, 1882 the Courts below were right in law in holding that the right of easement of the defendant to discharge rain water on the plaintiffs land was extinguished?" ( 10 ) AS the evidence shows, rain water was sought to be discharged at the time when the suit was filed from two spouts which were at a height of 15 feet and the distance between the two spouts was 10-9" form the area of the terrace which at that time was 31/2 x 12 as the same was reduced because of the pali or parapet in the terrace from 12 x 12. The Commissioners evidence Exhibit 53 and the sketch Exhibit 54 clearly show the existence of the said parapet or Pali in the terrace as also the width of the same which is 10". The trial Court in this connection has found as stated above that the quantum of rain water which was falling on the plaintiffs land would be much less as compared to the quantity of rain water which was falling previously. In fact, the reduced area is almost 1/4th of the original and is also flat area. Again, the quantity of rain water from the reduced area is to fall from 2 spouts the distance between them being 10-9" which would mean that there would not be concentration on one point and even the rain water from the reduced area would be evenly distributed because of two spouts. It is true that the height from which rain water would now be discharged has increased from 101/2 to 15, that is to say by about 41/2 the latter being the height of the spouts from the ground level. It cannot be gainsaid that permanent changes as aforesaid have been made in the dominant heritage but those by themselves do not bring about extinguishment of the present right of easement according to law. It will further need to be considered whether those permanent changes have increased the burden materially on the servient heritage. In the facts and circumstances of the present case, it would seem that the said burden has increased if the increased height of 41/2 alone is to be considered. One has also to take into consideration the fact that the area is reduced to almost 1/2th as stated above as also the fact that from the reduced area also the rain water is to be discharged not from one but from two spouts situated as above. In Suresh Chandra Biswas v. Jogendranath Sen, AIR 1920 Calcutta 268, it has been observed by the Division Bench consisting of Mookerjee Ag. In Suresh Chandra Biswas v. Jogendranath Sen, AIR 1920 Calcutta 268, it has been observed by the Division Bench consisting of Mookerjee Ag. C. J. and Fletcher, J. that it was well settled that it was well settled that no man could impose a new or increased restriction or burden on his neighbour by his own act, and for this reason an owner of an easement could not, by altering his dominant tenement, increase his right, that the said principle was well illustrated by the decision in Harvey v. Walters, that in that case the house in respect of which an easement was enjoyed was pulled down and was replaced by a new house three feet higher than the original one, that the Court held that in those circumstances as there was no addition to the burden, the easement remained unaffected and that as there was no evidence that a greater burden was thrown on the servient tenement by the alteration it was ruled that the easement was not thereby destroyed and the plaintiff was entitled to the right of eaves drop from the premises as altered and further that the said decision followed the earlier case of Thomas v. Thomas. In the aforesaid Sureshchandras case before the Calcutta High Court, the Subordinate Judge had found that the defendant had encroached on the super incumbent portion of the plaintiffs land by making the cornice and the string course at two places, one at a distance of 12 feet and the other of 22 feet from the ground, while the eaves of the tiled hut stood at a distance of only 8 feet from the ground and hung over the plaintiffs land along one line. He further pointed out that the accumulated water trickled down from the cornice from a height of 22 feet and consequently with greater force than the water which formerly came down from height of 8 feet only and it was on these facts that the Subordinate Judge came to a finding that the present cornice had to a certain extent created additional burden on the plaintiffs land and the said finding was accepted by the Calcutta High Court. Thus even when rain water came to be discharged from an entire rebuilt house eaves of which were 3 feet higher than the old ones it was held that the easement remained unaffected. Thus even when rain water came to be discharged from an entire rebuilt house eaves of which were 3 feet higher than the old ones it was held that the easement remained unaffected. In the present case, as stated above, there are also other factors as aforesaid and so the conclusion is inescapable that the right of easement in question has remained unaffected. ( 11 ) MT. Panna v. Ram Saran and another, AIR 1933 Allahabad 492 is a Division Bench decision of the Allahabad High Court. Here, the facts were that the gabled roof was altered to a pucca flat roof, that formerly there was aright to sprinkle water on the whole length of the eaves on one side of the house, that the right to the said easement was established and that the water of the whole roof was discharged through one hole on to the defendants land because of the said alteration. In view of the aforesaid facts, it was held that the change of that character completely destroyed the original casement. The present case is clearly distinguishable on facts. In the said Allahabad case, the water of the whole roof was discharged through one hole whereas in the present case, area has been reduced to almost 1/2th and even the reduced quantity of rain water is to be discharged from two spouts though the height has increased by about 41/2 feet. This authority therefore is not of much assistance in the present case. ( 12 ) THERE is another decision of Allahabad High Court rendered by a Single Judge in Ram Sahai and others v. Man Singh and others AIR 1952 Allahbad 398. This authority therefore is not of much assistance in the present case. ( 12 ) THERE is another decision of Allahabad High Court rendered by a Single Judge in Ram Sahai and others v. Man Singh and others AIR 1952 Allahbad 398. In the facts and circumstances of the case, it has been held that if a dominant owner dropped rain water from the eaves of his thatched roof upon the servient heritage, and subsequently he changed the thatched roof into a flat one and began to drop the rain water through two spouts there was no interruption of enjoyment within the meaning of Section 15 of the Easements Acts, 1882, that the burden was not increased upon the servient heritage because the amount of water dropped was the same and that the only difference was that when the roof was thatch the water dropped along the whole course of the eaves, whereas when it became flat the same quantity of water dropped through the two defined spouts. It is evident that the aforesaid Allahabad decision of the Division Bench proceeded on facts which were different from the facts before the learned Single Judge of the Allahabad High Court and each decision has proceeded on its own facts. So far as the present case is concerned, its facts are nearer to the facts in the case of Ram Sahai (supra), though not identical, and the additional facts as stated above in the opinion of this Court further improved the case of the present defendant. ( 13 ) SO far as the case of Keshri Sahay Singh v. Hit Narayan Singh, 58 Indian Cases 967 is concerned, it clearly has no bearing on the present case as in that case the owners of the dominant tenement had a right to discharge rain water from the eaves of the roof of their house from the height of 71/2 feet but subsequently the said owners had therefore the easement was extinguished. Thus in the totality of evidence and as there would not even be concentration of rain water at one place, it is impossible to conclude in the present case that the burden on the servient heritage has materialy increased. Thus in the totality of evidence and as there would not even be concentration of rain water at one place, it is impossible to conclude in the present case that the burden on the servient heritage has materialy increased. ( 14 ) ASSUMING for the sale of argument that the said burden has materially increased, then also in the facts, circumstances and evidence in the present case it would seem that the injury caused to the servient owner by the change is so light that no reasonable person would complain of it. All that the plaintiff (Exhibit 47) has deposed in this connection in his examination-in-chief is that in his land there would be pits if the rain water was discharged through spouts and his fodder would be spoiled and his chowk as well as the place where fodder is kept would become wet. In his cross-examination, he has stated that if there were heavy rains then pits would be of 1 or 11/2 and then he has deposed regarding the pits which according to him has been caused because of the discharge of the rain water through the pipe as per the interim arrangement. It is therefore clear that the injury thus caused to the servient owner by the aforesaid changes would be so slight that no reasonable person would complain of it. I therefore answer the issue accordingly. ( 15 ) IT goes without saying that sitting in second appeal under Section 100 of the Code of Civil Procedure, it will not be open to change a finding of fact howsoever grossly erroneous it may be But if there is a totally incorrect approach by the Courts below then there would be no finding of fact in the real sense of the term which could be said to have been reached by the Courts below. In Kamlaben Wd/o Naranbhai Jhinabhai and Others v. Patel Gopaldas Venidas, 23 (2) GLR 760 (=1983 GLH 967) in the facts and circumstances the Court had found that though there was well-laid line of demarcation between custody and occupation on one hand and possession on the other, the Courts below had failed to perceive the same and then had proceeded to examine the evidence under an erroneous approach. The Court had therefore found that there was no finding of fact in the real sense of the term and the Court in second appeal had proceeded to reach its own finding. In the present case also, as stated herein above, there has been an erroneous approach on the part of each of the Courts below and so this Court has reached the conclusion as stated above in the absence of finding of fact in the real sense of the term by the Courts below. ( 16 ) THE result is that the second appeal is allowed. The judgments of the Courts below are set aside. The suit of the plaintiff is dismissed. It is clarified that the defendant is entitled to discharge rain water of the aforesaid 1/4th part of the terrace from the two eastern spouts on the property in quesion of the plaintiff. In the circumstances, there will be no order as to costs throughout. Appeal allowed. .