1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Pyarchand Vs. Koshithal Gram Seva Sahakari Samiti & Others (S.B. Civil Second Appeal No.184/2010) DATE OF JUDGMENT : November 18, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Bheemkant Vyas for the appellant. BY THE COURT : Instant second appeal under Section 100, C.P.C. has been filed by the plaintiff-appellant against judgment dated 14.07.2010 passed by Addl. District Judge No.1, Bhilwara (Camp Gangapur) in Civil Appeal No.70/2006, whereby, learned first appellate Court dismissed the appeal and confirmed the judgment and decree dated 17.11.2006 passed by Civil Judge (Sr. Dn.), Gangapur in Civil Original Suit No.16/1997, by which, learned trial Court dismissed the suit for permanent injunction filed by the appellant- plaintiff. Brief facts of the case are that the plaintiff-appellant preferred a civil suit for permanent injunction on 2 13.03.1997 on the ground that plaintiff is having house and main gate of the house was situated in southern side with width of 4 feet and 7 feet high. The plaintiff-appellant was using the main gate for putting vehicles, animals and, so also, a mill was there adjacent to the land of the plaintiff- appellant and employees of the said mill were using the said way as public way measuring 18 feet. It is also pleaded in the plaint that in the east side of the way, agricultural land and godown of SC/ST community were situated and there is no boundary wall of respondent No.1 but, now, the respondent wants to raise the boundary wall without closing the public way in the absence of any right or title. As such the plaintiff-appellant will be deprived from using the said way which is in existence since last so many years. It is also pleaded that the said way is used by villagers of village Devalia since last long time, therefore, prayer was made by way of filing suit for permanent injunction to restrain the respondent-defendant from making any construction or closing the way. Learned trial Court after framing six issues and granting opportunity to both the parties to lead evidence finally heard the arguments and dimisse4d the suit vide 3 judgment dated 17.11.2006, against which, an appeal was preferred and, in appeal, the appellant filed application under Order 41 Rule 27, C.P.C. and respondent also preferred an application under Order 41 Rule 27, C.P.C. before the lower appellate Court. The first appellate Court, after appreciating all the material on record, dismissed the appeal and partly allowed the application of the appellant moved under Order 41 Rule 27, C.P.C. while dismissing the application filed under Order 41 Rule 27, C.P.C. by the defendant-respondent. In this second appeal, learned counsel for the appellant vehemently argued that judgments of both the Courts below suffer from illegality because both the Courts below have not properly appreciated the evidence, therefore, the judgments are erroneous. In fact, the said disputed way was kachcha way and villagers were using the said way for which permanent injunction was sought but while deciding issue No.1 both the Courts opined that the appellant-plaintiff has not prove with cogent and valid evidence that the way in question, for which, permanent injunction is sought is not proved. I have perused both the judgments passed by the trial 4 Court and learned first appellate Court. Learned trial Court while deciding issue No.1 gave the finding that plaintiff-appellant has failed to prove the issue with regard to substantiating his plea that way in question for which permanent injunction is prayed for is a way of 18 feet. The trial Court sent commissioner also for ascertaining the correct position of the site and while taking into consideration the commissioner's report and other evidence held that the plaintiff-appellant has not proved by cogent evidence issue No.1 and, so also, it is admitted position of the case that the polaintiff-appellant himself constructed the house in the year 1994 and took plea in the plaint that this way is in existence since last 150 years. Further, learned trial Court appreciated the correct position reported by the commissioner after inspect of the site and gave the finding that the plaintiff is not entitled for any easement right, on the basis of which, any decree for permanent injunction can be granted. In my opinion, no error has been committed by the trial Court while dismissing the suit and giving the finding against the plaintiff-appellant. Further, learned appellate Court gave cogent reasons for upholding the finding of the 5 learned trial Court. In this view of the matter, the concurrent finding of both the Courts below does not require any interference in this case because no substantial question of law emerges in this second appeal. Hence, there is no force in this second appeal and the same is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.