1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Mangi Lal. vs. Bhanwar Lal and others. S.B.CIVIL SECOND APPEAL NO.385/2005 UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 29.8.2005 PASSED BY SHRI NARSINGHDAS VYAS, ADDITIONAL DISTRICT JUDGE (FAST TRACK) NO.1, PALI CAMP JAITARAN IN CIVIL APPEAL DECREE NO.80/2005. DATE OF JUDGMENT ::: 3.1.2007 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. KS Rathore, for the appellant. - - - - - BY THE COURT: Heard learned counsel for the appellant. The appellant/plaintiff is aggrieved against the concurrent finding of facts recorded by two courts below in judgments dated 31.5.2003 and 29.8.2005 passed by the trial court and appellate court respectively. 2 The plaintiff filed suit for injunction on the basis of his alleged easementary right. The trial court apart from recording finding of facts about the alleged use of amenities by the plaintiff also, held that the plaintiff failed to prove his ownership over the house in dispute as well as failed to prove his possession of more than 20 years old. The trial court also held that the plaintiff's apartment is having other apertures for air and light. Being aggrieved against the judgment and decree of the trial court, the appellant/plaintiff preferred appeal which was dismissed by the first appellate court after considering the oral evidence and the facts of the case including after considering the documents produced by the parties viz, patta Ex.1 and sketch map Ex.2. Therefore, this second appeal. Learned counsel for the appellant vehemently submitted that two courts below went astray in as much as both the courts were under impression that the plaintiff was required to prove his ownership for claiming easementary right. However, it is also submitted that it is admitted case of the defendants that the plaintiff is owner of the property in dispute and is also in possession. Learned counsel for the appellant also submitted that the courts below committed serious error of law in observing that the plaintiff failed to produce any documentary evidence to 3 prove his old possession and opening of ventilators and windows more than 20 years ago. It is also submitted that the courts below also committed error of law in relying upon an engraved stone containing the year 1987 on the house of the plaintiff. It is submitted that the plaintiff was not put any question about this engraved stone fixed on his house. Learned counsel for the appellant also submitted that by oral evidence, the plaintiff/appellant proved his easementary right itself. I have considered the submissions of learned counsel for the appellant and perused the reasons given by the two courts below as well as the facts of the case. It appears from the reasons given by two courts below that two courts below carefully considered the documents placed by the plaintiff on record and thereafter, recorded the finding of fact that the plaintiff failed to prove his easementary right. Even if the courts below could not have or should not have gone into the title of the property of the plaintiff, even then that fact was very relevant for the purpose of finding out the time of possession of the plaintiff. That fact cannot be said to be irrelevantly considered by the courts below. The plaintiff himself produced the 4 patta of the house in dispute and, therefore, the relevant document was the sale deed of the plaintiff by which he purchased the house in dispute. If the two courts below have drawn adverse inference because of non-production of some documents and drawn presumption on the basis of engraved stone fixed on the house of the plaintiff, the courts below have based their finding on material evidence and it is not permissible under Section 100 CPC to reverse the findings recorded by two courts below on question of fact even if there is other view possible. In the present case, this Court is also of the opinion that there is no reason to take other view particularly in view of the fact that the plaintiff's house itself bears an important piece of evidence and that is year 1987 and it cannot be presumed that the plaintiff has put this stone in past before 1987. Be it as it may be, it was the duty of the plaintiff himself to explain the situation. So far as putting the question to the plaintiff for this stone is concerned, this fact has been admitted by plaintiff's witness Kishan Lal who admitted that the said stone is fixed on that house. Be it as it may be, the question of fact which has been decided by the courts below are that the plaintiff has other source of air and light and that fact goes to the root of the matter. 5 In view of the above, no substantial question of law is involved in this appeal. Accordingly, this appeal, having no merit, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya