IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.29 of 2005 --- Madhuri Devi wife of Ram Naresh Ojha, Resident of Village-Bhore, P.S. Mofasil, District-Gaya. -Defendant-Appellant-Appellant. Versus Ghunni Ram son of Jangi Ram, resident of Mohalla- Gauraxni, P.O. Gaya Nawada Road, P.S.Mofassil, District-Gaya. - Plaintiff-Respondent-Respondent. ----- For the appellant : Mr. Shashi Shekhar Dwivedi, Senior Advocate with Lakshman Lal Pandey, Advocate. For the respondent: Mr. Surendra Kumar Singh, Senior Advocate with Mr. Praveen Prakash, Advocate. ----- 06. 04.01.2010 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.143 of 1993 which was filed by the plaintiff-respondent for a relief of permanent injunction against the defendant from interfering with the construction of the wall on the eastern side of the suit land and restraining the defendant from opening a drain over the suit land and also for restraining the defendant from interfering with the peaceful possession of the plaintiff over the suit land. The said suit was decreed on contest by the learned Munsif-II, Gaya vide his judgment and decree dated 24.12.2003. 4. Against the aforesaid judgment and decree of the - 2 - trial court, the defendant filed Title Appeal No.05 of 2004 (06/2004) which was dismissed by the learned Additional District Judge-VIII, Gaya vide his judgment and decree dated 16.10.2004. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. The suit property is a four feet wide passage and the learned courts below have specifically found that defendant by his pleadings and evidence had failed to show that it was public in nature rather it was clearly proved that it was in an individual use and furthermore from the document of the defendant with regard to adjacent land (Ext.-C) it was found that no such gali had been shown on the western boundary rather it showed that in partition it was given to Mohan Ram, the predecessor in interest of the plaintiff and the defendant. After going through the evidence and pleadings of the parties, the learned courts below had specifically found that the claim of the defendant that he was using the suit land for air, light and passage was not supported by any of the witnesses, rather a simple case of prohibition of easementary right has been raised. On the other hand, the plaintiff had been able to prove by documentary evidence, including Ext.-3 as well as oral evidence including P.Ws. 4, 5, 6 and 7 that the suit property was the exclusive property of the plaintiff and the defendant had no such right at all. 6. Furthermore, it was found that the defendant by his pleading and evidence had not been able to show any statutory right or any easementary right over the suit property and hence he was not - 3 - entitled for any sort of relief under the Indian Easement Act. In the said circumstances, the learned courts below were quite justified in allowing the claim of the plaintiff for permanent injunction against the defendant with respect to the suit property. 7. This court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal which is accordingly, dismissed at this stage of hearing under order XLI Rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)