JUDGMENT 1. This appeal was admitted on the following substantial questions of law, thus: i) Whether the courts below had fallen in error in wrongly interpreting the agreement arrived at between the parties i.e. so called ‘Sammati patra’? ii) Has the first appellate court fallen in error in holding that an underground drainage is likely to cause nuisance? 2. Heard submissions of learned counsel appearing for rival parties at bar. 3. This second appeal is directed against judgment and order dated 1.10.2007, passed by the learned Principal District Judge, Gadchiroli, in Regular Civil Appeal No.15 of 2006, whereby the appeal was dismissed, which arose from judgment and order dated 30.1.2006, passed by the learned Civil Judge Junior Division, Sironcha, in Regular Civil Suit No.14 of 1998, whereby the suit was decreed. 4. The dispute pertains to the ancestral property which was subdivided amongst the coparceners bearing City Survey No.571 (old City Survey No.572). The parties who were brothers had settled their disputes with a consent deed dated 22.12.1996. The brothers namely Shankarrao, Satyanarayan and Tryambak discussed the dispute between them and agreed to reduce into writing consent deed on 22.12.1996 to resolve the dispute regarding the property in their possession shared by them after partition. The dispute was concerned with user of the common way from Aheri main road. The user was enjoyed by them in common from the main road upto the well. It was decided that Satyanarayan would be allowed to put up two slabs with columns so that he can use the area over the slab according to his convenience and the portion, below the slab constructed by Satyanarayan, was to be kept vacant as part of common road for use of all brothers. It was agreed by them that nobody will encroach the space below the slab as the space was agreed to be used as common way from the main road upto the well. The dispute as to water pipe for discharging waste water from the slab was also discussed and it was agreed that no brother would occupy or possess the stairs leading to the terrace in possession of Tryambak and also stairs leading to entry in the house of Tryambak as the space was to be kept in the same position as on 22.12.1996. Satyanarayan was allowed to construct the pipe line from slab to the Gutter lane. Satyanarayan was allowed to construct the pipe line from slab to the Gutter lane. The pipe was to be laid by the side of the wall. The parties using the bullock-cart from the main road upto the well were not to be obstructed by any intended construction in view of the agreement between the brothers and columns were to be constructed accordingly so as not to obstruct the way for plying bullock-cart used by the brothers. Accordingly, the agreement averred that the construction of the cement road which was then incomplete was to be completed by Satyanarayan and on that road nobody would discharge waste water or refuse and they will take precautions accordingly by managing disposal of waste water and refuse from their houses respectively. The brothers had specifically agreed that they would not create any obstruction for any drainage line to be constructed by the Government Scheme. The brothers had agreed to take precaution that there would be no obstruction to any drainage line to be constructed underneath the way under the Government Scheme. Any such objection, if any, for obstruction can be taken by any of the signatory to the agreement. This agreement was drafted in Marathi language understood by all signatories and the same was marked at Exh.87 in the suit for permanent injunction which was instituted by Shankarrao and Tryambak against Satyanarayan (third brother) with a prayer that the decree be passed for permanent injunction to restrain Satyanarayan or any person claiming through him from constructing a latrine pipe line, latrine tank or any other construction, addition, alteration and removal which will cause permanent obstruction over user of way upto the well on the suit property. 5. In other words, what the plaintiffs intended was to prevent Satyanarayan from making construction in such a manner which would cause permanent obstruction to the user of the common way. The agreement clarified that if there is any Government Scheme to lay down a pipe line underneath the road constructed by cement as agreed, then it was not to be objected. 6. The agreement clarified that if there is any Government Scheme to lay down a pipe line underneath the road constructed by cement as agreed, then it was not to be objected. 6. Thus, looking to the real controversy in the suit between three brothers it was only in relation to objecting the erring brother (defendant) from to construct the latrine and the pipe line by means of small pillars on the common lane and construction of the latrine (septic) tank over the common way in front of the house of plaintiff No.-2. The plaintiffs had reported about such intended construction to the Village Panchayat, Aheri as well as Police Station at Aheri before the plaintiffs instituted the suit so as to prevent the defendant from bringing the bricks, sand, cement pipes etc. intending to construct the latrine pipe line, latrine tank on the said common way which would be obstruction to user of the common way. 7. Thus, the dispute was narrow between three brothers and they had agreed to settle it amicably in view of the written consent deed as mentioned above. Perusal of consent deed Exh.87 if interpreted ad verbatim along with map Exh.69 what appears intended is that three brothers wanted peaceful and amicable settlement between them so as to prevent an obstruction by means of construction over the user of common way which led them from main road to the well inside the property co-shared by them upon partition between them. 8. Thus, as already observed, Satyanarayan was allowed to make construction of columns and slab over it for his own use as per his convenience. He was also allowed to discharge the waste water by means of fixation of pipe from the slab leading upto the gutter line permissible. Any construction as per the Government Scheme was not to be objected. The agreement between three brothers reduced into writing on 26.12.1996 contains the mutual assurance given by them to each other that on the user of common lane which led them from the main road upto the well there would be no construction so as to obstruct any of the brothers. Therefore, this agreement itself mentions that the common way shall be maintained in such a condition that there would be no obstruction for plying bullock-cart from the main road upto the well. Therefore, this agreement itself mentions that the common way shall be maintained in such a condition that there would be no obstruction for plying bullock-cart from the main road upto the well. The construction of cement road as agreed by Satyanarayan below the slabs constructed by him with the help of columns would also indicate that there would be no discharge of waste water so as to obstruct the user of common way by the brothers. The map was already on record as per Exh.69. 9. Bearing all these reasons in mind, the trial Court, it appears, has dealt with the issues with reference to the evidence led and documents submitted before it, including the consent deed as well as map in respect of the common way. The trial Court found that the plaintiffs are entitled for permanent injunction as prayed for in the light of the evidence led before it. Primarily speaking, any permanent construction intended by the defendant was required to be in accordance with due permission from the Village Panchayat or local authority concerned. 10. The parties had agreed that from the main road upto the well the common way has to be maintained without anybody causing any obstruction to the access way from the main road by means of bullock-cart etc. vehicle which may be used by any of the brothers. In other words, no construction can be allowed in such a manner which can create an obstruction on the road for use of the bullock-cart between its access point as shown in Exh.69. The trial Court, after making reference to the judicial precedents regarding binding nature of the family settlement or arrangement, concluded the issue by finding that the plaintiffs were entitled for order of permanent injunction to prevent obstruction or hindrance in the usage of common way by the parties pursuant to the consent deed between three brothers which was admittedly signed by them and as agreed between them. The conclusion by the trial Court was in the background of case of the plaintiffs that during life time of their father three brothers had partitioned the house property into three shares. The house on the ground floor came to the share of Shankarrao (front portion) and Tryambak (backside portion) while first floor was given to Satyanarayan in such a manner that front side of the first floor would be used by him. 11. The house on the ground floor came to the share of Shankarrao (front portion) and Tryambak (backside portion) while first floor was given to Satyanarayan in such a manner that front side of the first floor would be used by him. 11. It is in the background that Satyanarayan who intended to use the possession of his share wanted to construct in the common lane. According to the plaintiffs they were not averse to the construction of the septic tank and drainage line which would not to obstruct the user of the common way. 12. What was objected to by the plaintiffs was any construction causing obstruction on the common way which was contrary to what was agreed by the consent deed between them. 13. Thus, the defendant was prevented from raising construction of such a nature which would cause obstruction to the user of the common way intended to be used by the brothers in accordance with the consent deed read along with map Exh.69. 14. I have gone through the judgment of the trial Court as well as the first appellate Court which confirmed the judgment by the trial Court. It does appear that the trial Court considered the rulings in the cases of Thayyullathil Kunhikannan and others ..vs.. Thayyullathil Kalliani and others reported at AIR 1990 Kerala 226 and Kale and others ..vs.. Dy. Director of Consolidation and others reported at AIR 1976 SC 807 regarding the binding nature of family settlement or family arrangement as such agreements are reduced into writing by disputing parties. Thus, particularly when the parties are brothers sharing ancestral property between them, they may agree to burry possibility of dispute arising between them by clarifying as to what they intended under the family settlement or arrangement. 15. The consent deed in the present case Exh.87 which prohibited construction upon the common lane contrary to the terms thereof is admitted document in this case. If it is read along with map Exh.69, there would be no doubt that all three brothers intended to keep the common lane to be used by them without any obstruction caused by any construction by any of the brothers so that any of the brothers if he so desires can ply the bullock-cart from the main road upto the well (user of common way indicated in map Exh.69). That being so, the defendant could not have insisted upon laying down sewage line in such a manner so as to cause obstruction by making any construction over the common way. 16. The consent deed-agreement-had clearly made an exception in favour of the Government Scheme, if any, regarding the drainage line beneath the common way. The construction, if any, as already observed beneath the common lane if permanently made by means of cement could have been made only in accordance with sanctioned plan from the Village Panchayat or local authority concerned and in accordance with the terms mentioned in the consent deed agreed between three brothers. That being so, when the defendant intended to put up the construction over the common way by laying a pipe line, it was rightly objected to and the rights flowing from the consent deed Exh.87 was rightly protected by the Courts below. 17. Shri Rohit Joshi, learned counsel appearing for the appellant, with reference to Exh.87 contended that defendant Satyanarayan was allowed to make construction for use of the portion over the slab and also to lay down a pipe line in accordance with consent deed Exh.87. The submission that Satyanarayan is entitled to construct as per his choice pursuant to the terms of consent deed has to be qualified by a clarification that Satyanarayan is not entitled to construct over the common lane in such a manner which can cause obstruction to the user of the common way from the main road upto the well as shown in map Exh.69. The executing Court in this regard shall take care that there would be no such construction which would be unlawful and contrary to the sanctioned plan from the local authority. The construction intended under the consent deed must be lawful. This observation is specifically made so as to ensure that the common way as agreed between the parties would remain without any hindrance of obstruction by construction by any of the brothers for beneficial user of the property shared by them. It is understandable that one of the brothers Satyanarayan who was above 70 years of age would require amenity of the toilet block and ancillary construction of pipe line from the toilet block leading to the entry point of common drainage line beneath the common way. It is understandable that one of the brothers Satyanarayan who was above 70 years of age would require amenity of the toilet block and ancillary construction of pipe line from the toilet block leading to the entry point of common drainage line beneath the common way. The septic tank, if any, would have to be below the level of common lane as it has to be without any obstruction for the user of the common way. That being so, the Court executing the decree would see to it that decree is executed in such a manner that reasonable restraint upon the defendant is observed in its letter and spirit of the consent deed to prevent him from making construction over the common way which may be constitute obstruction to the plaintiffs in user of the common passage or the way as already observed. 18. Shri M.P. Khajanchi, learned counsel appearing for respondents, invited my attention to the fact that the defendant had not filed any written statement in the suit. It is contended that in view of Order VIII Rule 1 of the Civil Procedure Code it was obligatory upon the defendant to file the written statement in the suit, as according to him, prior to amendment made in the year 2002, the defendant was duty bound to present the written statement of his defence on or before the first hearing of the suit or within such time as the Court may permit. It appears that there was a praecipe whereby the defendant adopted reply to the application for temporary injunction in the suit as his written statement. On that basis, it appears that the trial Court framed the issues and proceeded further to hear the evidence and decided the suit. Since the trial Court considered the reply to the application for temporary injunction as defence and proceeded further accordingly, the reference to the application under Order VIII Rule 1 at the stage of the second appeal would be redundant, particularly when both the Courts below heard and decided the suit by the concurrent finding of facts. According to the learned Counsel, in view of the ruling in the case of KashiNath (dead) through LRs ..vs.. Jaganath, reported at (2003) 8 SCC 740 the High Court would not re-appreciate the evidence so as to interfere with the concurrent findings of facts by the Courts below. According to the learned Counsel, in view of the ruling in the case of KashiNath (dead) through LRs ..vs.. Jaganath, reported at (2003) 8 SCC 740 the High Court would not re-appreciate the evidence so as to interfere with the concurrent findings of facts by the Courts below. The reference is also made to the ruling in the case of Narayanan Rajendran & another ..vs.. Lekshmy Sarojini & others reported at 2009(2) SC ALL 414 in order to submit that when the Courts below have recorded the concurrent findings of facts, the High Court would not interfere and substantial question of law is required to be formulated and the parties are required to be heard on such limited substantial question of law. There can be no dispute with the proposition that the High Court would be justified to entertain the second appeal when the substantial question of law is existing as is stated or formulated. The duty is cast upon the High Court to formulate the substantial question of law for to hear the parties upon such substantial question of law. I have gone through the rulings. This Court had already formulated the substantial questions of law, which are referred to above, pursuant to its order dated 15.9.2009 and entertained the second appeal. 19. In view of above discussion, no interference is required in the impugned decree by injunction order against the defendant except to the limited extent of clarification of the impugned judgment to ensure that the decree shall be satisfactorily executed in the letter and spirit of the consent deed agreed between the parties to the litigation so as to logically end the real controversy between three brother. 20. Needless to say that the substantial questions of law formulated as above have to be answered against the appellant in the negative as in my opinion in the facts and circumstances revealed from the record prohibition against defendant Satyanarayan by an injunction order from making construction constituting obstruction over the common way was correct as decreed in the suit. Thus, for the reasons stated as above, second appeal deserves to be dismissed. Second Appeal No.112 of 2008 stands dismissed. There shall be no order as to costs.