JUDGMENT 1. - This is plaintiff's second appeal under Section 100 of the Code of Civil Procedure, filed against the judgment and decree dated 06.08.2012 of learned Additional District Judge, Bharatpur, in Regular Civil Appeal No.77/2011, whereby he dismissed the appeal and affirmed the judgment and decree dated 23.09.2011 of learned Civil Judge (Sr. Div.), Kumher, whereby Civil Suit No.286/2008 filed by him for permanent injunction was dismissed. 2. The plaintiffs filed a suit contending that they have a pucca house constructed in the village Vilawati, Tehsil Kumher, District Bharatpur since long and from eastern-southern side of the house and towards is northern side there is a public way, which goes from village Vilawati to jungle and its width is more than ten feet, and shown in green colour in the map enclosed with the plaint. There exists semi pucca road. That public way is situated in Khasra No.502 which is a Government land. The plaintiff and other villagers are using the same since long. The defendants obstructed the same by raising a wall at place A to B on the said public way and obstructed the same, as a result of which the rain water gets collected in front of the house of the plaintiff and enter therein, causing huge loss to their property. 3. The defendant disputed the averment made in the plaint contending that the entire village Vilawati, Tehsil Kumher, District Bharatpur is situated in Khasra No.502, which is a land of Makbooja Raj Gair Mumkin Abadi. The pleadings are vague. There is no such disputed public way nor such way goes from abadi to jungle. The rain water passes through the southerns side way and finally falls in Pokhar (pond) of the village. Wall at the place A to B does not exist on the way and flow of the water has not been obstructed by the defendant. It is the gram panchayat which has put some sand. The plaintiff himself has constructed his house on the land of public way, therefore he has the water clogging in front of his house. The plaintiff wants to grab the land of 'nohra' of defendants no.1 to 5, which is in existence for long and is having a boundary and a gate. 4. The plaintiffs examined six witnesses and exhibited eight documents, whereas the defendant examined three witnesses and exhibited four documents. 5. The plaintiff wants to grab the land of 'nohra' of defendants no.1 to 5, which is in existence for long and is having a boundary and a gate. 4. The plaintiffs examined six witnesses and exhibited eight documents, whereas the defendant examined three witnesses and exhibited four documents. 5. Learned trial court on detailed analysis of the evidence in Para 13 of the judgment including the photos Exhibit 4 to 8 of the disputed site and the documents Exhibits 2 and 3 and also oral as well as documentary evidence, observed that plaintiff no.1 himself has admitted in his statements that the defendants have got constructed boundary wall over the disputed land. There is a tin shed fitted with the gate. They have got a fodder machine installed in that land and keep their cattle there. He has also admitted that on southern-western side of this land is situated a vacant plot of Ratan Singh. There is no house or kaccha road on the southern side of Mani Ram. The public way goes upto the house of Jal Singh. This witness further admitted in his cross-examination that the public way goes upto the place A indicated in the site plan (Exhibit A-1). He also admitted that he earlier initiated proceedings under Section 133 of the Code of Criminal Procedure, against the defendants but pleaded ignorance as to the final out come of those proceedings. Ashok (PW-2) also made similar statement and stated that the public way existed only upto the agriculture field of Ram Kishan and not beyond that. The level of the house of plaintiffs is below one-and-a-half feet, which is why the water clogs there and does not easily flow from there. Gulab Singh (PW-3) in cross-examination stated that boundary has been raised illegally. The way goes from south to north goes towards agriculture field and adjacent thereto there is place available for Holi festival but the learned trial court did not accept that evidence as there was no pleading to that effect in the plaint. Ram Singh (PW-4) in cross-examination stated that the way goes upto the agriculture field of plaintiff Kanhaiya, and that there is a gate fixed near the house of Jal Singh. Ram Singh (PW-4) in cross-examination stated that the way goes upto the agriculture field of plaintiff Kanhaiya, and that there is a gate fixed near the house of Jal Singh. Ramesh Chand (PW-5) in cross-examination though alleged that the land has been encroached upon by way of putting tin shed by obstructing the way, and also admitted that there is boundary on other three sides but he also has stated that there was pucca boundary wall along the agriculture field of Devi Ram and pucca way constructed leading to agriculture field of Ratan Singh. PW-6 Hori Lal has alleged that the defendants have trespassed over 1=-1 bighas of land, which is part of Khasra No.502 and that they have constructed a boundary wall constructed, fitted the gate, raised a tin shed and kept their cattle there. This witness has not stated that the slope of the public way is from south to north, and has stated contrary to the statement of the plaintiff. 6. As against the aforesaid evidence, the defendant witness Mishri (DW-1) has stated that the defendants are in possession of the part of land of Khasra No.502 having erected boundary wall, gate, tin shed, and also installed a fodder machine. There are other articles lying in that 'Nohra'. He has denied that the defendants have ever threatened the plaintiffs to obstruct the way. The public way is rising towards south, which creates hurdle in the flow of the water and ultimately the water goes to Pokhar. The water clogs there in front of the house of the plaintiff because of uneven land. The plaintiff earlier filed a complaint under Section 133 of the Cr.P.C. against the defendant before the S.D.M., which was dismissed holding that there is no nuisance on account thereof. Certain documents were produced vide Exhibit A-3 and A-4. Learned trial court on the basis of analysis of aforesaid evidence, observed that defendants had their possession over the 'nohra' with boundary wall and gate for long. All the witnesses of the plaintiff admitted that the public way exists upto the house of Jal Singh. Flow of water through that public way has been there for long. Learned trial court on the basis of analysis of aforesaid evidence, observed that defendants had their possession over the 'nohra' with boundary wall and gate for long. All the witnesses of the plaintiff admitted that the public way exists upto the house of Jal Singh. Flow of water through that public way has been there for long. Learned trial court held that the plaintiff has not made any pleadings in the plaint as to since when the flow of water was there through the disputed land or if at all the plaintiff had right to use the allotted public way, which, according to him, is being sought to be obstructed by the defendants. The plaintiff failed to establish his easementary rights. Besides, he has not made any pleadings as to when and in what manner he got the easementary rights. The trial court therefore held that the plaintiff has failed to prove prima facie case in his favour. The appellate court has upheld the finding of learned trial court and, in Para 11 of the judgment, the appellate court has recorded a categorical finding that the land where the water is collected, is not of public way and the wall constructed by the defendants is not proved to have been constructed over the land of public way. Learned appellate court has concurred with the finding recorded by the trial court that this wall has been constructed as boundary wall of 'nohra', which was in possession of the defendants for a long time. The plaintiff has failed to prove his right of way to 'nohra'. 7. Shri Alok Mathur, learned counsel for the appellants has argued that the findings recorded by the trial court are contrary to the record because on the one hand it has held that it is a public way and on the other hand it also held that it has not been obstructed by the defendants. The appellate court has also committed same irregularity by upholding such erroneous finding by the learned trial court. Both the courts have erred in deciding the issues no.1 and 2 against the appellants by holding that the plaintiff-appellants have failed to prove that they were using the disputed land as a public way and when did they acquire the easementary right. Both the courts have erred in deciding the issues no.1 and 2 against the appellants by holding that the plaintiff-appellants have failed to prove that they were using the disputed land as a public way and when did they acquire the easementary right. Learned courts below have seriously erred in holding that the plaintiff has failed to prove the place where rain water is collected and also that the wall from the place A to B, is raised on the land of public way. It was argued that this fact has been substantially proved by producing the evidence, both oral as well as documentary, by the plaintiff. In this connection, reference was made to Exhibits 1 to 8. Those documents also included number of Photographs, which were not accepted by the learned trial court because of failure of the plaintiff to produce their negatives. 8. The suit ultimately has been dismissed by the learned trial court which has been upheld by the learned first appellate court primarily on the finding of fact as to whether the possession of the defendant was on the land of public way and whether the wall A to B has been constructed on the land of public way, which is causing obstruction in the flow of water leading to clogging in front of the house of the plaintiff. Both the courts have on critical analysis of the evidence, have held that the wall A to B has not been constructed on the public way. It is in fact a boundary wall of the 'nohra' of the defendants fitted with the gate, which the defendants have been using for a long time. The findings have also been recorded that the places where the water clogging is not the land of public way. The learned courts below have also found that the plaintiff earlier filed a complaint under Section 133 of the Cr.P.C., alleging public nuisance but the same was dismissed during his cross-examination, however, the plaintiff pleaded ignorance about the result of the aforesaid complaint. The finding of the courts below that the plaintiff failed to prove his prima facie case so the pleadings of the plaint were lacking in may aspects. The findings of the courts below therefore cannot be said to be perverse, erroneous. 9. The finding of the courts below that the plaintiff failed to prove his prima facie case so the pleadings of the plaint were lacking in may aspects. The findings of the courts below therefore cannot be said to be perverse, erroneous. 9. I have considered the submissions of the learned counsel for the appellant in the light of the findings of both the courts below and I find that the controversial issues involved in the present case relate to question of fact and there is concurrent finding of fact by both the courts below, which cannot be interfered with by this court in second appeal under Section 100 of the C.P.C. This appeal does not raise any question of law muchless any substantial question of law in the meaning of Section 100 of the CPC. The second appeal is accordingly dismissed in limine. 10. Consequent upon dismissal of appeal, the stay application, filed therewith, does not does not survive and same is also dismissed.Appeal Dismissed. *******