1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Second Appeal No.107/2009. (Kalu Ram Vs. Geeta Devi) DATE OF JUDGMENT : July 13, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. K.C. Samdariya for the appellant. BY THE COURT : In this second appeal, judgment rendered by the Addl. District Judge, Sojat in Civil Appeal Decree No.8/07 dated 14.10.2008 is under challenge, whereby, learned lower appellate Court affirmed the judgment and decree dated 21.08.2007 passed by the Civil Judge (Jr. Dn.), Sojat City in Civil Original Suit No.60/2003. Appellant-plaintiff preferred suit before the trial Court for permanent injunction on the ground that he is in possession of the house in question which is evident from the will which is executed in his favour by late Ganga Devi and respondent is interfering in his peaceful possession, therefore, decree for permanent injunction may be issued against her. 2 Learned trial Court, after framing 4 issues, though decided issues No.2 and 3 in favour of the appellant- plaintiff with regard to validity and genuineness of the will but dismissed the suit on the basis of finding on issue No.1, whereby, a clear finding was given by the trial Court that appellant-plaintiff failed to prove his possession over the house in question. Against the finding of the learned trial Court with regard to not proving possession of the premises in question, appeal was preferred, that too, has been dismissed by the learned lower appellate Court, as indicated hereinabove. Learned counsel for the appellant vehemently argued that upon perusal of the will, it is revealed that executor of the will has categorically stated that the plaintiff and his family are residing with him and, on that basis, the trial Court as well as first appellate Court ought to have accepted the fact that the plaintiff and his family are residing in the house in question. According to him, both the Court below have committed error in arriving at the finding that plaintiff and his family are not in possession of the house in question, therefore, no decree can be passed for permanent injunction. I have perused both the judgments passed by learned Courts below. It is obvious that before the trial 3 Court the respondent by cogent evidence proved that the plaintiff is not residing in the premises and, for the said purpose, number of documents were produced on record by the defendant including ration-card, permission of construction given by the Municipal Board and other documents including electricity and water supply bills. Accordingly, the trial Court accepted those documents and held that appellant-plaintiff is not in possession of the house in question, therefore, no decree for permanent injunction can be issued against the defendant. In my opinion, when possession is not proved before the trial Court and there is concurrent finding to this effect by both the Courts below, then, obviously no decree for permanent injunction as prayed by appellant- plaintiff can be passed. Learned trial Court as well as appellate Court did not commit any error while giving the finding with regard to issue No.1 that plaintiff has failed to prove his possession over the house in question. It is also observed that on the basis of any assertion made in the bill it is not proper to accept contention of the appellant-plaintiff that he is in possession of the house in question. This finding is further strengthened by the fact that defendant- 4 respondent produced on record number of documents as evidence to show that she is in possession of the whole of the property. In this view of the matter, no question of law arises for consideration in this second appeal. This second appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.