JUDGMENT A.N. VARMA, J. 1. THIS is a plaintiffs second appeal arising out of a suit for prohibitory and mandatory injunction as well as for recovery of Rs. 500/- as damages. The trail court had decreed the suit. The appellate court, however, reversed the decree of the trial court and dismissed the suit. Hence this second appeal. 2. BRIEFLY, the plaint case was that the plaintiff house lay towards the north of the wall AB shown in the plaint map. In the south of this house was plaintiff's Baithak which was later constructed into a double-storeyed room ABCD shown in the plaint map. Towards the east of the plaintiff's house there was a piece of vacant land which was acquired by the defendant. The wall AB was exclusively owned by the plaintiff and upon this wall rested the support of the room ABCD. The water from the plaintiff's house always used to flow towards the west through the wall AB. The (sic) of the plaintiff's house were also inclined towards the west. The defendant, however, dug up a 9" hole into the wall AB in the upper storey and fixed bricks in that wall. Before doing that, the defendant dismantled the tonda, chhajja as well as Khapral of the plaintiff's upper wall. When the defendant did not stop, the plaintiff had to lodge a First Information Report. On account of the illegal acts of the defendant, the wall AB developed a crack causing loss to the plaintiff amounting to Rs. 400/-. As the defendant was continuing to give threats to dismantle the remaining part of the chhajja and tonda, the present suit was brought for prohibitory injunction as well as mandatory injunction directing the defendant to restore the wall AB to its original state. The suit was contested by the defendant. His case was that the wall belonged exclusively to him and that the defendant had constructed his house with the permission of the Town Area Committee. The dispute with regard to the ownership of the wall stands settled by the decree passed in suit no. 232 of 1962 between the same parties in which the plaintiff admitted that the wall in suit belonged exclusively to the defendant. Indeed the plaintiff constructed his upper storey by taking support from the defendant's wall AB with the express permission of the latter. 232 of 1962 between the same parties in which the plaintiff admitted that the wall in suit belonged exclusively to the defendant. Indeed the plaintiff constructed his upper storey by taking support from the defendant's wall AB with the express permission of the latter. The issue as to the direction in which the water from the plaintiff's house used to flow also stood settled between the parties in the aforesaid suit no. 232 of 1962. In any case, the defendant had not damaged the wall or dismantled the tonda, chhajja, Khaprail etc. of the plaintiff's upper wall. 3. THE trial court accepted the case of the plaintiff with regard to the ownership of the wall AB and, on the further finding that the defendant had caused damage to that wall and dismantled tonda and chhajja, etc of the plaintiff it decreed the suit for injunction as well as for damages. 4. ON appeal by the defendant, the lower appellate court reversed these findings and held that the wall belonged exclusively to the defendant. It has further found that the defendant has caused no damage to that wall in any case, so as to entitle the plaintiff to any relief for damages. The lower appellate court on a consideration of .the evidence including the admission of the plaintiff, has recorded a categorical finding that the water of the plaintiffs house used to flow north and south and not towards the house of the defendant as alleged by the plaintiff. The main contention of Sri S. A. Ansari, learned counsel for the appellant, was that the suit of the plaintiff-appellant was entitled to succeed on the own admission made by the defendant in paragraph 3 of the written statement which was to the effect that the double storeyed room of the plaintiff was built with the leave and permission of the defendant's ancestors. Relying on this assertion, learned counsel submitted that in view of the admitted fact that the plaintiff did construct a double storeyed room resting on the wall AB, the licence granted to the plaintiff became irrevocable under Sec 60 (b) of the Easements Act and consequently the defendant had no right to dismantle any portion of that wall or to interfere with the plaintiff's right arising from that licence. 5. HAVING given the matter a careful consideration, I find no merit in the above contention. 5. HAVING given the matter a careful consideration, I find no merit in the above contention. The clear and categorical case with which the plaintiff came to the court was that he was the absolute and exclusive owner of the disputed wall AB. Neither in the plaint nor in his evidence did the plaintiff even vaguely hint at the plea which was sought to be raised by the learned counsel in second appeal. The plea raised by the learned counsel undeniably raises mixed questions of law and fact. Such a plea not having been raised in the courts below and the same not having been made the subject of any issue, it would not be fair to the other side to permit that issue to be raised for the first time in second appeal. 6. HOWEVER, the plea is liable to be rejected on another ground. Assuming that on the basis of the licence granted to the plaintiff by the defendant's ancestors, the latter had executed a work of a permanent character and incurred expenses in the execution thereof, the question that still remains for consideration would be whether the acts of the defendant complained of in the present suit have resulted in the infraction of the rights granted to the plaintiff under the licence or that the rights of the plaintiff flowing from the licence have, in any view, been adversely affected by the acts of the defendant. This question necessarily implies investigation of several questions of fact which, not having been either pleaded or proved by the plaintiff, cannot be allowed to be raised in second appeal. Indeed, the defendants categorical case is that he has done nothing to affect the rights of the plaintiff in respect of the wall AB. The lower appellate court has recorded a categorical finding that the plaintiff has failed to prove that the defendant has caused damage to the wall AB or that he has dismantled the tonda, the chhajja and khaprail etc. This finding of the lower appellate court was not demonstrated by the learned counsel for the appellant to be vitiated by any error of law. This finding of the lower appellate court was not demonstrated by the learned counsel for the appellant to be vitiated by any error of law. That being so, even if the plaintiff's case was covered by Sec. 60 (b) of the aforesaid Act, no relief can be granted to the plaintiff as he could not establish that the defendant has by his acts done anything inconsistent with or in derogation of the licence granted by his ancestors in favour of the plaintiffs. In this connection, I may notice the decision cited by the learned counsel for the appellant in the case of Mohd. Abdul Jamil v. Manzoor Ahmad, AIR 1932 All. 572 in which it has been held that where the plaintiff built a wall on the upper storey of a house which rested on the lower wall belonging to the defendant and the defendant had knowledge of the construction but allowed it without any protest, there was an implied grant of licence by the plaintiff to the defendantand that under section 60 (b) the licence could not be revoked. This case lends no assistance to the defendant for the reasons already stated here in above. Firstly, the defendant had not raised this plea at the appropriate stage and, secondly, even if this plea were to be entertained in second appeal, the same is liable to be rejected on merits as the plaintiff has failed to demonstrate, as found by the appellate court, that the defendant has, in any way, contravened the licence. The other cases cited by the learned counsel, namely, Rahmat Ilahi v. Mohd. Hayat Khan, 1943 ALJ 569 and Jogesh Chandra Roy v. Emdad Meah, AIR 1932 PC 28 are also of no assistance for the same reason. Learned counsel next made an attempt to challenge the finding recorded by the lower appellate court on the question whether the defendant had damaged the wall and other things. I have perused the finding of the lower appellate court on this issue and find that the conclusions of the lower appellate court are based on a proper appreciation of the evidence on record and in any case, in doing so the appellate court has committed no error of law so as to justify interference in second appeal. Learned counsel was wholly unable to point out that the finding of the appellate court suffered from any error of law. 7. Learned counsel was wholly unable to point out that the finding of the appellate court suffered from any error of law. 7. IN the end, I may add that the learned counsel for the appellant had made no attempt to challenge the finding of the lower appellate court regarding the ownership of the wall AB. The lower appellate court has found that the disputed wall AB belongs to the defendant and this finding is based, inter alia, on the admissions of the plaintiff as well as other oral and documentary evidence of unimpeachable character existing on the record. 8. IN the result, the appeal fails and is dismissed. But I make no orders as to costs. Appeal dismissed.