CSA NO.30/89-Mohd. Ismail & Ors. vs. Peer Bux & Ors. (2) CSA No.93/89-Mukeem vs. Peer Bux & ors. Judgment dt:22/9/2008 1/5 S.B.CIVIL SECOND APPEAL NO.30/89 (Mohd. Ismail & Ors. vs. Peer Bux & Ors.) S.B.CIVIL SECOND APPEAL NO.93/89 (Mukeem vs. Peer Bux & ors.) DATE OF JUDGMENT : 22/9/2008 HONB'LE DR.JUSTICE VINEET KOTHARI Mr. G.R.Kalla, for the appellant. Mr.V.D.Kalla, for the respondent. 1. Heard learned counsels. 2. The dispute between the parties goes back to the year 1966 and pertains to `Bada' situated between the residential houses of plaintiffs and defendant in Makrana Mohahlla, Kalandari Mazjid at Makrana. 3. Against the concurrent judgments of two courts below rejecting the suit of injunction of plaintiffs, the plaintiff appellants have approached this Court by way of present second appeal with the following substantial questions of law to be framed for consideration by this Court:- “(1) Whether the non-consideration of the material available on record vitiates the findings recorded by the first appellate court and the judgment deserves to be quashed on that account? (2) Whether the award submitted by the CSA NO.30/89-Mohd. Ismail & Ors. vs. Peer Bux & Ors. (2) CSA No.93/89-Mukeem vs. Peer Bux & ors. Judgment dt:22/9/2008 2/5 Arbitrators as per agreement of the parties and directions issued by the Court, having not been taken into consideration while deciding the matter in issue? (3) Whether it was necessary for the court to have invited objections with respect to making the said award a rule of the court and it was only after the due consideration of the award or holding it to be unfit for the making a rule of the court in accordance with the award that the further proceedings in the matter should have been taken? (4) Whether it was necessary for the court to have framed an issue with respect to the right of way available to the defendant-respondent and the onus of proving the said issue ought to have been placed upon the defendant-respondents, having failed to do so whether grave injustice has been caused to the plaintiff- appellants or not? (5) Whether the right of way was claimed on the basis of a customary easement, easement of necessity, or a prescriptive easement and for returning a clear cut findings after framing an issue in accordance with the aforesaid points and without returning specifically in this perspective conferment of right of passage to the defendants is wrong and illegal and CSA NO.30/89-Mohd. Ismail & Ors. vs. Peer Bux & Ors. (2) CSA No.93/89-Mukeem vs. Peer Bux & ors. Judgment dt:22/9/2008 3/5 deserves to be set aside? (6) Whether the non-consideration of the documentary evidence placed on record on behalf of the plaintiff-appellant i.e. the application and map submitted by one of the defendants before the Municipality and showing therein the continuity of the disputed Bada and the neighbouring houses and the non-showing of any passage in between has vitiated the judgment and decree of the first appellate court? (7) Whether the non-consideration of the impact of the award and the map filed by the Arbitrators in the instant case has also resulted in vitiating the findings recorded by the first appellate court as well as of the trial court? (8) Whether a wrong appreciation or misreading of the evidence of D.W.1 Shri K.C.Mehta and basing the whole judgment by the first appellate court on it has resulted in grave injustice and vitiated the judgment and decree passed by the first appellate court? (9) Whether the admissions made by a co- defendant going to the roots of the matter has got a binding effect on the other co-defendants and whether a CSA NO.30/89-Mohd. Ismail & Ors. vs. Peer Bux & Ors. (2) CSA No.93/89-Mukeem vs. Peer Bux & ors. Judgment dt:22/9/2008 4/5 decree could have been passed on the basis of the said admissions? (10) Whether the appreciation of evidence by the courts below by not following the rules of appreciation of evidence makes the judgment and decree liable to be quashed? (11) Whether the impleading of parties after the filing of the award and at the time when the court was considering objections with respect to making the award a rule of the court, the court should have first allowed the persons who were impleaded to file objections to the award and it was only after the disposal of the objections raised against the award that further proceedings in the suit should have been continued? (12) Whether the non-framing of proper issues with regard to the easement of the right of way and placing the onus of proof on the right person, the judgment and decree deserves to be quashed? 4. During the course of arguments, both the learned counsels submitted that present appeal may be disposed of with the observations that if either of the parties file a suit for declaration CSA NO.30/89-Mohd. Ismail & Ors. vs. Peer Bux & Ors. (2) CSA No.93/89-Mukeem vs. Peer Bux & ors. Judgment dt:22/9/2008 5/5 claiming his ownership right over the `Bada' in question, then any finding and observations made by courts below shall not stand in their way. The prayer of learned counsels seems to be fair and, therefore, same is accepted. 5. Thus, while not interfering with the judgments of courts below, since issue of declaration has neither been raised nor decided by the courts below so far, either of the parties can be given this liberty to claim their respective right of ownership in a suit for declaration, if any, filed by them and it is needless to say that any observations and findings of the courts below made in present injunction suit may not come in their way. 6. With these observations, this second appeal is disposed of. (DR.VINEET KOTHARI), J. item no.45 & 46 baweja/-