H. N. TILHARI, J. ( 1 ) THIS is defendants second appeal arising out of judgment and decree dated 26th august, 1988, in regular civil appeal No. 73 of 1985 (Mudddrangappa and Another v. Gangamma), whereby the learned civil judge, namely Sri T. S. Palanethra, dismissed the defendants first appeal and affirmed the judgment and decree dated 8-11-1985 passed by the munsiff, madhugiri in original suit No. 276 of 1980, (Gangamma v. Muddarangappa and Others), decreeing the claim of the plaintiffs in the above mentioned suit for the relief of declaration, possession and injunction directing the defendants-appellants to remove the spouts fixed on the western wall of their house within the time prescribed. ( 2 ) THE facts of the case in brief are that the plaintiff-respondent filed the suit for the above mentioned reliefs alleging herself to be the owner in possession and enjoyment of survey No. 89/2 more specifically described in the body of the plaint. According to the plaintiffs case, the defendant was the owner of survey No. 89/3. According to the plaintiffs case, the defendants who are the owners of survey No. 89/3 have encroached upon a portion of the plaintiffs survey No. 89/2 as mentioned in paragraph 3 of the plaint. The plaintiff further averred that the defendants inserted in the western wall of the defendants house, a spout so as to throw out the rain water of their house and other water on the land of the plaintiff. Panchayat was called upon, but no avail. According to the plaintiff, the cause of action arose in may, 1980 and because of the acts of the defendants and the plaintiff had to file the suit for the reliefs claimed. The defendants filed the written statement and admitted that survey No. 89/3 of koratagere village did belong to them i. e. , defendants. But they denied the plaintiffs claim of title in respect of survey No. 89/2. The defendants further denied that they committed any trespass or encroachment on the plaintiffs land to the extent of 6' east-west and 33' south-north, at any time within six months time prior to the filing of the suit. The defendants also denied that they inserted any spout. The defendants case has been that two spouts did exist there ever-since the mantap in which the defendants live and were constructed, according to the defendants, 40 years back. The defendants also denied that they inserted any spout. The defendants case has been that two spouts did exist there ever-since the mantap in which the defendants live and were constructed, according to the defendants, 40 years back. The defendants denied the right, title and interest of the plaintiff over 11/2 feet width land to the west of the mantap and claimed they belonged to defendants. The defendants further claim right of easement over the land in dispute and further asserted that plaintiff had no cause of action and that the land in dispute measuring 200 sq. Feet did not form part of survey No. 89/2 and survey No. 89/2 is proved to be belonging to plaintiff. The trial court on the basis of the pleadings of the parties framed the issues which read as under: (1) whether plaintiff is the owner of survey No. 89/2 of koratagere? (2) whether the land shown as 'abcd' in the plaint sketch forms part of survey No. 89/2 of koratagere? (3) whether defendants have encroached the area shown as 'abcd' in plaint sketch? (4) whether the rain water from the spout on the western wall of the 1st defendant's house falls on the plaint's land? (5) whether the land measuring 11/2 feet in breadth to the west of the mantap belongs to 1st defendant? (6) whether the first defendant has acquired a right of easement to discharge the rain water through the spouts? (7) whether the suit is barred by limitation? (8) to what reliefs is the plaintiff entitled? (9) what order? ( 3 ) THE trial court decreed the plaintiffs suit after having recorded the following findings: (A) that the land in dispute 'abcd' form part of survey No. 89/2 and that the land in survey No. 89/2 is proved to be belonging to the plaintiff. (B) that the defendants have encroached upon survey No. 89/2 to the extent not as shown in the plaint, but only to the extent as shown in the commissioner's map ex. P- 10. (C) that the land measuring 11/2 feet in breadth to the west of the mantap does not belong to the first defendant. This land in fact belongs to the plaintiff. (D) that the defendant had failed to establish that he has easementary right over the plaintiffs land in dispute. (E) that the plaintiffs suit cannot be held to be barred by time. This land in fact belongs to the plaintiff. (D) that the defendant had failed to establish that he has easementary right over the plaintiffs land in dispute. (E) that the plaintiffs suit cannot be held to be barred by time. The trial court held that the suit to be within limitation and found that the plaintiff is entitled to get the declaration of her title and to the decree for injunction as well as for possession to the extent it has been encroached upon as found by the commissioner as per commissioner's sketch ex. P- 10. ( 4 ) HAVING recorded these findings, the trial court decreed the plaintiffs suit and issued mandatory injunction Order directing the defendants to remove the spouts that had been fixed by them on the western wall of their house for the purpose of throwing out the water or rain water of the defendants house in the plaintiffs land. He further held that the plaintiff is entitled for being granted decree for possession over the encroached area, the area containing stone slabs and the land in between the fence and the house as disclosed in ex. P-10 and decreed the suit for possession as well. ( 5 ) HAVING felt aggrieved from the judgment and decree of the trial court, the defendants-appellants preferred the regular first appeal in the district judge court and this appeal has been decided by the appellate court namely by the civil judge, madhugiri. The learned appellate court affirmed the findings and the decree granted by the trial court and its decision. Having felt aggrieved from the judgment and decree of lower appellate court, whereby the lower appellate court has affirmed the trial court's judgment and decree, the defendants have come up before this court under Section 100 of the Code of Civil Procedure. ( 6 ) I have heard Sri T. N. Raghupathy, the learned counsel for the appellants assisted by Sri P. Munikriehna. It has been urged on behalf of the appellants that the water that will fall down on the plaintiffs land is not likely to cause any damage to the plaintiff or injury to the plaintiff and therefore the injunction should not have been granted. The learned counsel further contended that in the alternative, only damages if any could be awarded but no decree for injunction should have been granted against defendants for removal of the spouts. The learned counsel further contended that in the alternative, only damages if any could be awarded but no decree for injunction should have been granted against defendants for removal of the spouts. ( 7 ) AS regards the findings recorded by the courts below, those findings of question of facts are not challenged by the learned counsel for the appellants. Thus, it is clear that no legal error has been shown to have been committed by the courts below in recording the concurrent findings of facts as mentioned earlier. Those findings are binding on this court as well as on the parties. ( 8 ) IT is not the privilege of anybody to commit trespass on anybody's land one way or the other. Nobody has got a right to throw the water or rain water of his house on the land belonging to others. The appellants' learned counsel contended that in this case no injunction should have been granted nor direction for removal of spout should have been issued, but the proper course would have been to grant the decree for damages. No amount of compensation or damages has been indicated or suggested by appellant at the stage of arguments nor any such plea had been raised at any stage either at the trial court or at the first appellate court. It may also be mentioned that such a plea does not find place in the pleadings of the defendants. No doubt, Section 38 of the Specific Relief Act, provides with reference to the perpetual injunction in the matter of granting decree for permanent injunction that the court may grant a decree for permanent injunction where there exists no standard for ascertaining the actual damage caused, or likely to be caused by invasion or where invasion is such that compensation in money would not afford adequate remedy. ( 9 ) SO far as the mandatory injunction is concerned, mandatory injunction as provided under Section 39 of the specific relief ACT provides that mandatory injunction can be granted to prevent the breach of an obligation, if it is necessary to compel the performance of certain acts which are capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. ( 10 ) UNDER Section 40 of the Specific Relief Act, it has beenprovided that in a suit for permanent injunction or for mandatory injunction, the plaintiff can claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages. ( 11 ) SECTION 41 of the Specific Relief Act, provides that the cases and circumstances in which injunction cannot be granted. Those circumstances are mentioned in clauses (a) to (f) of Section 41. My attention has not been invited by the learned counsel for the appellants to any of the clauses under which the facts and circumstances of the case may be covered, so as to urge that the injunction could not be granted in the present case. Section 41 reads as follows:"41. An injunction cannot be granted, (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an ACT of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; (j) when the plaintiff has no personal interest in the matter". ( 12 ) THE learned counsel for the appellants submitted that the principle which is applicable to the grant of permanent injunction may be applied that where there exists no standard to ascertain damage or damage likely to be caused or where invasion is such that money would not be remedy, injunction can be granted. This can be applied for mandatory injunction for removal. This can be applied for mandatory injunction for removal. The defendants nowhere has taken such a course of defence in the pleadings that the damage likely to take place are of a nature which can be ascertained or that for the invasion of the plaintiffs right of possession, compensation would be adequate remedy nor have indicated any standard for ascertaining damages or compensation nor did point out what compensation could be adequate. The pleas to that effect not having been raised in pleadings either at the trial stage nor any issues have been pressed nor any evidence have been led has got to be deemed to have been waived by the defendant himself. These pleas had not been raised in the courts below particularly in view of the fact that these pleas require question of facts to be investigated, these new pleas cannot be entertained at this stage. The litigation cannot be given a new life by remanding the case as urged by the counsel for the appellants. It has not been shown from the records that damages are ascertainable or that compensation would be adequate remedy. I having thus considered, hold that the courts below on the basis of the findings of questions of facts, have not committed any error of law of substantial nature in decreeing the plaintiff-respondent suit for the reliefs claimed. In my opinion, the present appeal is devoid of any merit or substance and as such it is hereby dismissed. No orders as to costs. --- *** --- .