ORDER : 1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908, filed by the appellants – original plaintiffs, arises from the impugned judgment and decree dated 10.05.2019 passed by the learned Additional District Judge, Rajkot at Dhoraji in Regular Civil Appeal No.6 of 2019, confirming the judgment and decree dated 07.08.2018 passed by the learned Additional Senior Civil Judge, Dhoraji in Regular Civil Suit No.1 of 2015 dismissing the suit. 2. The brief facts of the present case are as under : 2.1 The lands of the parties are adjoining lands as such. The dispute between them is essentially about the way for the disposal of rainwater. The per the allegations of the plaintiffs, defendants No.1.1 to 1.4 have encroached upon the Government land. From the record, it transpires that the plaintiffs have also encroached upon the Government land, which is suppressed by the plaintiffs. Therefore, the plaintiffs have filed a suit being Regular Civil Suit No.1 of 2015 before the learned trial Court for declaration and permanent injunction, whereby the plaintiffs have prayed to declare that the plaintiffs have right of way for disposal of rainwater from the said alleged acquired land for Venu Canal and further to declare that the plaintiffs have right to use the said canal for taking water and for other activities related to the Canal. The plaintiffs have further prayed for direction to defendant No.2, who is the Deputy Engineer, Venu Irrigation Planning Office to take care and maintain the land of the Canal and to remove the illegal encroachment upon the land of the said Canal by way of a permanent injunction. The plaintiffs have further prayed to restrain defendants No.1.1 to 1.4 not to obstruct the plaintiffs from using such land of Canal and from taking water from such Canal. 2.2 The learned trial Court has, after considering the various evidence – documentary as well as oral, framed the issues and decided them accordingly and thereby rejected the suit vide judgment and decree dated 07.08.2018, on merit. 2.3 Being aggrieved, the plaintiffs have preferred an appeal being Regular Civil Appeal No.6 of 2019 before the learned appellate Court. 2.2 The learned trial Court has, after considering the various evidence – documentary as well as oral, framed the issues and decided them accordingly and thereby rejected the suit vide judgment and decree dated 07.08.2018, on merit. 2.3 Being aggrieved, the plaintiffs have preferred an appeal being Regular Civil Appeal No.6 of 2019 before the learned appellate Court. The learned appellate Court below has framed the points for its determination and decided it accordingly, after considering the rival submissions of the parties and also after evaluating the evidence on record and dismissed the appeal, on merit and confirmed the judgment and decree passed by the learned trial Court. 2.4 It is these judgments and decrees passed by both the Courts below, which are challenged in this second appeal by the appellants – original plaintiffs before this Court. 3.1 Learned advocate Ms. Heta Panchal for the appellants has submitted that the plaintiffs have primarily prayed for the permanent injunction qua and against defendants No.1.1 to 1.4, who are private persons and therefore, the rejection of the prayers and claim of the plaintiffs for the non-issuance of the statutory notice under Section 80 of the CPC is contrary to the provisions of law. 3.2 She has further submitted that the bare reading of Order XXVII Rule 5A of the CPC will clarify that for the prayer of declaration of the powers of the public officer, the concerned Government is not necessitated to be impleaded as a party. 3.3 She has also submitted that the public officer, though joined as defendant No.2, has already specifically contended that defendants have illegally encroached on the subject land of canal. 3.4 She has suggested the following substantial questions of law for determination of this Court in this appeal : (i) Whether the suit filed against the private person as well as the Government authority without issuing the notice under Section 80 of the Code of Civil Procedure, 1908 would dehors the maintainability of the suit against the private person ? (ii) Whether the suit, prayed for the directions against or for the public officer, statutorily requires the impleadment of the concerned Government ? 3.5 She has submitted that this appeal may be allowed. 4. I have heard the submissions made by the learned advocate for the appellants. I have considered the various documents available on record. (ii) Whether the suit, prayed for the directions against or for the public officer, statutorily requires the impleadment of the concerned Government ? 3.5 She has submitted that this appeal may be allowed. 4. I have heard the submissions made by the learned advocate for the appellants. I have considered the various documents available on record. I have perused the impugned judgments and decrees passed by both the learned Courts below. The controversy between the parties is in a very narrow compass. On record, it revolves mainly for the way for disposal of rainwater from the fields. However, the demeanor of the appellants speaks otherwise. From the record, it transpires that the plaintiffs have not come with clean hands. On one hand, the plaintiffs indirectly try to vacate the Government land which is allegedly encroached upon by defendants No.1.1 to 1.4 and on the other hand, it is proved that the plaintiffs have encroached upon the Government land. Thus, this Court finds that it is not the case for getting the legal right of the party, but it is the case as to why the other side encroaches upon the Government land more than them. 5. From the record, the following undisputed facts emerged, which are weighed by this Court. - The parties are the farmers and adjoining neighbours by their agricultural lands. - The Government declared Minor-1/L Canal for irrigation many years ago, but the canal is not in working condition. - The canal is in dilapidated condition and the Government has never released water into the said canal. - The purpose of acquiring land and constructing a canal for irrigation is not fulfilled. - Since the canal is not in working condition, all the farmers have levelled the canal boundaries and used the land for agriculture. - The deceased father of defendants No.1.1 to 1.4 has purchased their land in the year 1994. - The land for so-called Canal was acquired by the Government before the 1994. - The plaintiffs have encroached upon the Government land. - Defendants No.1.1 to 1.4 have encroached upon the Government land, as alleged. - The rainwater flows in its natural way and slope. - No one has obstructed the way of flowing rainwater in its natural way and slope. - The plaintiffs have encroached upon the Government land. - Defendants No.1.1 to 1.4 have encroached upon the Government land, as alleged. - The rainwater flows in its natural way and slope. - No one has obstructed the way of flowing rainwater in its natural way and slope. 6.1 The learned trial Court has, after considering the various evidence – documentary as well as oral on record at Exh.17, 35, 39, 22 and 32, 36, 44 and 45, framed the following issues at Exh.15 for its determination and decided it accordingly. 6.2 The learned trial Court has, after considering the various evidence on record, rejected the suit filed by the plaintiffs, mainly on the ground that the plaintiffs have not come with clean hands, there is suppression by the plaintiffs, the plaintiffs have not joined the necessary party – the Government, the Authority has assured that they will remove the encroachment, if any, by any party, upon the Government land, the Canal is not in existence, the way of rainwater flows in its natural way and not obstructed by anybody. 6.3 The learned trial Court has observed that the suit is filed for the way of rainwater. The plaintiffs have stated in the suit that they want to dispose of the rainwater in the alleged Canal. Defendant No.2, in his deposition before the learned trial Court, stated that the Canal is meant to supply water for irrigation and not for the disposal of rainwater by the farmers. He further stated that the rainwater flows in its natural way and slope. He also stated that if there is encroachment on the Government land by either party, he will remove the same. He, being an independent witness, stated that the plaintiffs have encroached upon the Government's land. The contesting respondents have also alleged that when he tried to obstruct the plaintiffs from encroaching and/or vacating the Government land, the plaintiffs filed a suit against the defendants. Therefore, the allegations made by the contesting respondents that the plaintiffs try to encroach upon the Government land, seem to be true in view of the deposition of an independent witness viz., an officer of the department regarding the encroachment by the plaintiffs. 6.4 The learned appellate Court below has also dismissed the appeal and confirmed the judgment and decree passed by the learned trial Court. 6.4 The learned appellate Court below has also dismissed the appeal and confirmed the judgment and decree passed by the learned trial Court. The learned appellate Court below has observed that there are various contradictions in the averments made regarding the facts in the suit by the plaintiffs as well as in the examination-in- chief and cross-examination. The learned appellate Court below has observed that on one hand, the plaintiffs have filed a suit for finding the way for disposal of rainwater and on the other hand, he has stated in his deposition that the rainwater flows in its natural way and slopes through the field of defendants No.1.1 to 1.4 and the defendants have not constructed any kachcha wall or slope in his field. 6.5 With regard to the observation made by the learned trial Court that the plaintiffs have not come with clean hands, the learned appellate Court below has observed that an independent witness – defendant No.2 – officer of the Department has stated in his deposition that the plaintiffs have encroached upon the lands of the so-called canal. This statement has not been rebutted by the plaintiffs in his deposition and/or by filing a counter affidavit before the learned trial Court. Therefore, such a statement tilts the balance against the plaintiffs. 6.6 One more aspect of the rejection of the suit and appeal is that the plaintiffs have not joined the Government as necessary parties to the suit proceeding. Both the Courts below have observed that since the plaintiffs have prayed against defendant No.2 about not taking proper action and about dereliction of duty by defendant No.2, the plaintiffs have to join the Government as party defendants in the suit proceedings in view of the provisions of Section 79 of the Code of Civil Procedure, 1908 and therefore, the suit is barred by non-joinder of necessary party i.e. the Government and is liable to be rejected in view of the provisions of Order I Rule 9 of the CPC. The learned trial Court has rightly taken into consideration the decisions of the Hon’ble Apex Court in the case of :- (i) Coal Mines P.F. Commissioner versus Rameshchandra Jha reported in 2012 (0) AIR (SC) 408, more particularly paras : 13 and 14 thereof and (ii) District Collector, Srikakulum versus Bagathi Krishna Rao reported in 2010 (0) AIR (SC) 2617, more particularly paras : 5 to 7 thereof. 6.7 It is noted that years ago, the Government decided to acquire the lands of the farmers for irrigation. The lands were acquired too. The erstwhile owner of the land in question was there at that time. After completing the process of acquirement, the land in question is sold to the father of the present defendants No.1.1 to 1.4. As averred by the plaintiffs, the compensation was also paid to father of defendants No.1.1 to 1.4. It is not the case of the plaintiffs that defendants No.1.1 to 1.4 have encroached upon their lands. It is a matter of record that the plaintiffs have also encroached upon the Government land, that too Canal land. Under the circumstances, if the grievance is required to be raised by anyone, it is the Government, who has to adopt legal recourse for vacating the encroachment and not the plaintiffs, more particularly when he has also encroached upon the Government land and that too Canal land. The plaintiffs have as such no locus to file suit with such prayers, more particularly when the plaintiffs are sailing in the same boat. 6.8 Further, looking to the deposition of defendant No.2 itself, he assured the Court that he would remove the encroachment, if any, made by either party, upon the Government’s land. He has clearly stated in his deposition that the lands were acquired for the purpose of a minor canal by the Department; the compensation was paid to the claimant/farmers; the work was not completed due to the reasons best known to the Government; the canal is not working; there is no water in the canal; the land remains unfinished and uneven since long; therefore, the farmers may have levelled such lands and started agricultural activities on the said lands; there was no obstruction by defendants No.1.1 to 1.4 qua flowing the rainwater from their field; the rainwater flows in its natural way and slope from the field of the plaintiffs towards the filed of the contesting defendants. Under the circumstances, both the learned Courts below have rightly rejected the suit/appeal of the plaintiffs. 7. At this stage, it would be fruitful to refer to the provisions of Section 100 of the Code of Civil Procedure, 1908, which reads as under: “[100. Second appeal.— (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 8. It is relevant to refer to the judgment of the Hon’ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Online SC 875, more particularly paragraphs 7, 14 and 15 thereof, which read as under : “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:— “27. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:— “27. In Hero Vinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545 ], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545 ] are set out hereinbelow : (SCC p. 554, para 21) “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means— of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with—technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 ] the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969 ] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314 ], AIR p. 1318, para 5) ‘5. … when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.’ 28. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:— “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. They are:— “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs., had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 9. Thus, from the above facts and circumstances of the case and considering the impugned judgments and observations made by both the learned Courts below, this Court is of the opinion that both the learned Courts below have framed the issues/points and decided it accordingly by giving cogent and convincing reasons, as recorded in the impugned judgments. The impugned judgments of both the learned Courts below are just, proper, in accordance with law and in consonance with the material available on the record as well as after properly appreciating the documentary as well as oral evidence produced on the record. This Court finds that there is no perversity or illegality in the findings given by both the Courts below. The impugned judgments and decrees are just, proper and legal and no interference is required to be made by this Court. This Court further finds that no any question, much less any substantial question of law arises in this group of appeals for consideration of this Court. 10. Under the circumstances, the second appeal needs to be dismissed and is dismissed accordingly, at the admission stage.