CSA 453/2006 -Dr. Darshan Kumar Vs. Krishna Devi & Ors. Judgment dt.19.1.09 1/2 S.B. CIVIL SECOND APPEAL NO.453/2006 Dr. Darshan Kumar Vs. Krishna Devi & Ors. Date of Order : 19th January, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Vijay Bishnoi for the appellant. Mr. Anil Vyas for the respondents. --------- 1. Heard learned counsels. 2. In this present second appeal though the trial court has decreed the suit filed by the appellant for injunction against the defendant Bejnath but the appellate court has allowed the appeal of the defendant by the impugned order dated 10.12.2004 on the ground that from Exhibit 1 sale deed and Exhibit 2 power of attorney produced by the plaintiff-appellant which showed that on the northern side of the land in question purchased by the plaintiff-appellant the defendant Bejnath was having his house. It, therefore, appeared wrong to the appellate court as alleged in the plaint that the defendant Bejnath had encroached over the plaintiff's land on 7.10.2001 and thus the suit for injunction came to be dismissed by the first appellate court. 3. Learned counsel for the appellant-plaintiff Mr. Vijay Bishnoi points out that though no written statement was filed by the defendant Bejnath before the learned trial court and, therefore, on the basis of evidence produced by the plaintiff, the trial court has decreed the suit, yet the first appellate court drawing wrong inference from CSA 453/2006 -Dr. Darshan Kumar Vs. Krishna Devi & Ors. Judgment dt.19.1.09 2/2 these documents dismissed the suit of the plaintiff even though no written statement or evidence was produced by the defendant before the learned trial court. 4. Having perused the impugned judgment of the first appellate court, this Court is satisfied that the first appellant court was not justified in drawing any inference like the one it did, from the evidence produced by the plaintiff even though the defendant had not produced any written statement or evidence before the learned trial Court. 5. The said order of the first appellate court is, therefore, liable to be set aside. 6. Accordingly, this second appeal is allowed and setting aside the impugned judgment of the first appellate court dated 10.12.2004, the appeal is restored to the said appellate court for decision afresh in accordance with law. [ DR. VINEET KOTHARI ], J. item No.31 babulal/-