Appeal from Appellate Decree No.8 of 1994 ----- Against the judgment and decree dated 4.9.1993 and 18.9.1993 Passed by 6th Additional District Judge, Bhagalpur allowing In part Title Appeal No.65 of 1989/78 of 1990 preferred Against the judgment and decree dated 22.6.1989 and 4.7.1989 Passed by Munsif 2nd, bhagalpur in Title Suit No.98 of 1985. ----- SMT.VIDYA DEVI ... ... Appellant Versus SMT.PREMLATA SINGH & ANR... ... Respondents ----- For the Appellate : M/S Mallika Mazumdar, Adv. Bishwanath Choudhary, Adv. For the Respondents : M/S Chandra Mohan Jha, Adv. Shailendra Kumar Jha, Adv. ----- P R E S E N T THE HON'BLE MR. JUSTICE GHANSHYAM PRASAD ----- Ghanshyam Prasad,J. This appeal by the plaintiff is against the judgment and decree dated 4.9.1993 passed by 6th Additional District Judge, Bhagalpur in Title Appeal No.65 of 1989 thereby the learned Additional Judge has allowed the appeal in part and to that extent, the judgment and decree dated 22.6.1989 passed by Munsif II, Bhagalpur in Title Suit No.98 of 1985 has been set aside. 2. The plaintiff-appellant filed the suit in question for declaration of her title upon the suit land as well as for removal of encroachment, obstruction etc. made by the defendant-respondents. The case of the plaintiff is that she purchased 1 katha 2 dhurs of land out of Holding No.15 from one Ramdas Singh through registered sale deed dated 25.3.1982. On the same day, defendant no.1 also purchased 2 - 2 - katha 10 dhurs parti land from same vendor out of same holding. There was 3’ wide passage(suit land) starting from Kashi Mistry lane to western extremity of plaintiff’s land for ingress and egress. Later on, the plaintiff purchased the said passage through registered sale deed dated 29.5.1985. Thereafter, the plaintiff constructed house on purchase land and opened door and window opening in the said passage. The plaintiff also raised 1’ high wall towards western extremity of the passage. The further case is that the vendor had left 2’wide open space in between plaintiff and defendants land for flow of water and enjoyment of air and light. 3. Further case is that while the plaintiff had gone to Bhagalpur the defendants encroached upon the open space left by the vendor and also 2½“ Kaska land of the plaintiff leading to closure of window due to projection. Details of encroachment, obstruction etc. have been given in the plaint as well as in map attached to the plaint. 4. The defendant no.1 filed written statement and contested the suit. His case is that 3’ wide passage in question was not for exclusive use of the plaintiff. The same was for common use of both the parties. The vendor had no right to sell the common passage. It is further stated that the vendor never left 2’ wide open space in between lands of - 3 - plaintiff and defendants. She has also denied about any encroachment and obstruction by raising Chajjas. All constructions are in her own purchased land. 1’ high wall has also been constructed by her in her own land. 5. The learned trial court framed as many as seven issues. The Issue no.5 runs as follows : “5. Have the defendants made the following encroachment:- (i) Encroachment of the Kaska of the plaintiff beyond her western wall 2 & ½ inches width about 28 feet north to sout as marked by letter A, and projections (chajja) in such a manner that water from over it falls on the western wasll of the plaintiff, (ii) Put chajja over about 15 feet plaintiff’s said passage (suit land) shown by letter B, (iii) Opened two windows with chajja overlapping the plaintiff’s galis shown by letter B1, B2 in the Eastern wall of the defendants’ house, (iv) Constructed a wall on the plaintiff’s passage running from east to west closing half of the door of the plaintiff’s western wall in the passage shown by letter D and enclosed apart of the said passage of the chajja opening a window in the defendant’s southern wall shown by letter N. (v) Did break and removed plaintiff’s on wall on the western side of the said passage for about 10 fts shown by curved line and also 36 feets of other place.” 6. The learned trial court after consideration of oral as well as documentary evidence decreed the suit against the defendant and directed her to remove illegal encroachment - 4 - and construction enumerated in issue no.5 within sixty days. 7. Being aggrieved by the judgment of trial court the defendant preferred appeal before the District Judge. Ultimately the same was heard and disposed of by Additional Judge-VI. The learned Additional Judge while confirming the judgment of the lower court allowed the appeal of the defendants only in respect of alleged encroachment and projection mentioned in Sub Issue No.1 of Issue No.5 and Item Nos.1 and 2 of paragraph-17 of the plaint. 8. This second appeal has been preferred against the judgment passed by learned lower appellate court in respect of Sub Issue No.1 of Issue No.5. Following legal question have been formulated : a) Whether after giving the finding “ so far as points raised in paragraph-17 of the plaint and for which Issue No.5 was formulated do not go in favour of appellant” the court of appeal was right in allowing the appeal in respect of Item Nos.1 and 2 of paragraph-17 of the plaint ? b) Whether in respect of Issue No.5(1) the court of appeal was right in disturbing the well considered judgment of trial court without discussing the evidence and reasons assigned by the trial court ? 9. It appears that defendant nos.1 and 2 have - 5 - also filed cross objection against the impugned judgment. The same has been admitted for hearing vide order dated 10.12.1998. However, no legal question has been formulated for hearing of cross objection. 10. The learned counsel for the appellant challenged the finding of the learned appellate court. It is submitted that the learned appellate court has not given any reasons for setting aside judgment of the lower court on Sub Issue No.1 of Issue No.5. On the other hand, the learned counsel for the respondent while supporting the findings of the learned lower appellate court on Sub Issue No.1 challenged the judgment of both the courts on other sub issues. It is submitted that both the courts have not properly appreciated oral evidence and other circumstances and have wrongly decreed the suit. 11. The plaintiff-appellant in paragraph-17 of the plaint has enumerated six illegal acts i.e. encroachment and illegal construction. A sketch map has also been attached with the plaint. In judgment, the trial court has framed Issue no.5 and has enumerated all such alleged encroachment and construction under five sub issues. The learned lower appellate court also adopted those issues for decision of the appeal. The Issue No.4 is in respect of the title of the plaintiff over the suit - 6 - land. Both the courts after consideration of oral as well as documentary evidence have held that the plaintiff has title over the suit land. So far Issue no.5 is concerned, the learned trial court has held that the defendants have made encroachment and illegal construction as alleged in plaint and mentioned under Issue no.5 and, accordingly, decreed the suit as prayed for. 12. The learned appellate court has dealt with sub issue no.1 separately in paragraph-11 of the judgment and after consideration of deeds executed by Proforma defendant has held that no land measuring 2’ wide was ever left in between land of the plaintiff and defendant and, accordingly, allowed the appeal in part in favour of the defendant only in respect of Item Nos.1 and 2 of paragraph-17 of the plaint mentioned in Sub Issue no.1 of Issue no.5. 13. It is well settled law that the High Court in second appeal cannot go behind the facts and reverse the findings of the lower appellate court passed on proper appreciation of oral evidence and documents (1999 vol.3 SCC 733 and 1997 Calcutta 363). From above discussion, it is quite apparent that the lower appellate court has given its findings on Sub Issue No.1 after appreciation of evidence and documents. Therefore, this Court under the jurisdiction of - 7 - second appeal is not competent to interfere and reverse its findings unless it is perverse and illegal. The learned counsel for the appellant failed to show any ground for interference in the said finding of the lower appellate court. 14. So far cross objection filed by the defendants is concerned, there is concurrent finding of facts of both lower court. Both the courts after appreciation of evidence and documents and report of Survey Knowing Commissioner have found encroachment and obstruction over the suit land. No law point is involved in this matter nor any legal point has been formulated. It requires no mention that section 100 C.P.C. does not give power to the High Court to upset the concurrent findings of facts. Thus, the cross objection has apparently got no merit. 15. In the result, this appeal as well as cross objection is hereby dismissed on contest. The judgment and decree by the first appellate court is confirmed. Under the circumstances there shall be no order as to cost. ( Ghanshyam Prasad ) PATNA HIGH COURT Dated the 5th August,2008 N.A.F.R./N.H. - 8 -