1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Kalyan Singh & Others Vs. Ghanshyam Vaishnav (S.B. Civil Second Appeal No.422/2007) DATE OF JUDGMENT : July 06, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Sajjan Singh for the appellants. BY THE COURT : In this second appeal, the appellant-defendants are challenging the judgment and decree dated 27.08.2007 passed by Addl. District Judge, Sojat City in Civil Appeal No.13/2006, whereby, the learned appellate Court affirmed the judgment and decree dated 24.07.2006 passed by the Civil Judge (Jr. Dn.), Sojat in Civil Original Suit No.30/2001. According to facts of the case, suit for mandatory and permanent injunction was filed by respondent- plaintiff Ghanshyam Vaishnav. In the suit, it was specifically prayed that appellant-defendants have made encroachment upon the public way which is in existence since last 50 years in village Dornadi and respondent- 2 plaintiff as also all the villagers are having easementary right of public way, therefore, it was prayed that encroachment so made by the appellant-defendants may be removed and they may be restrained from making any encroachment upon the public way. The learned trial Court, after framing 9 issues and recording oral evidence of P.W.-1 Ghanshyam, P.W.-2 Sagar Devi and P.W.-3 Mangu Singh and taking on record 10 documents, so also, recording evidence of four witnesses on the side of the defence, decreed the suit in favour of the respondent-plaintiff. The said judgment and decree dated 24.07.2006 was challenged by the defendants by way of filing appeal before the Addl. District Judge, Sojat City. Learned appellate Court affirmed the adjudication made by the trial Court and dismissed the appeal filed by the present appellants. Learned counsel for the appellants vehemently argued that the finding arrived at by both the Courts below is perverse and , so also, ignoring the universal truth that in the villages and old cities of India there are chabutari at both sides of the gate of a house and that is rightly constructed by them, therefore, the decree passed by the trial Court for removal of the said chabutari is illegal. Further, it is argued that matter of 3 regularization was pending before the Panchayat, therefore, the learned trial Court has committed error while misreading the material evidence and relied upon inadmissible evidence, therefore, the finding arrived at by the trial Court as well as appellate Court is illegal and contrary to law. It is also argued by learned counsel for the appellants that alleged finding against the appellants for encroachment upon the public way is also illegal and without any evidence on record. The learned trial Court has failed to consider that the plaintiff has not proved the case in his favour, therefore, the Courts below have committed manifest perversity and, accordingly, judgment and decree passed by both the Court below deserve to be set aside. It is lastly argued by learned counsel for the appellant that the learned Courts below have committed material illegality while deciding issues No.4, 5 and 6 jointly in favour of the respondent-plaintiff. I have considered the arguments advanced by learned counsel for the appellants and, so also, perused the judgments of both the Courts below. Admittedly, there is no title in favour of the appellant-defendants to show that the land in question where the alleged encroachment has been made by 4 them is belonging to them nor they have proved before the Court that they are in possession of the said land for so many years whereas respondent-plaintiff proved by cogent evidence that the land where the appellants have made encroachment and constructed the chabutari is public way. The finding of fact arrived at by both the Courts below cannot be interfered with while exercising jurisdiction under Section 100, C.P.C. in this second appeal. Further, upon perusal of both the judgments under challenge, no substantial question of law emerges for consideration. More so, it is obvious from the fact that admittedly there is no title or any right accrued to the appellant-defendants to retain possession of the land of public way. It is also required to be observed that the scope of second appeal is very limited. The Court can interfere if any substantial question of law is involved in the matter; but, here in this case, no question of law is borne out warranting interference. In this view of the matter, there is no force in this second appeal. Hence, this second appeal is dismissed. (Gopal Krishan Vyas) J. Ojha, a.