MUMTAZ ALI Vs. MOHD SHARIF KHAN

JUDGEMENT

(1.) THIS is defendants' second appeal arising out of a suit for a permanent injunction to restrain the defen dants from digging any foundations or making any constructions over the land in dis pute. The plaintiff claimed that he had ease mentary rights over this land and the same Were likely to be interfered with if the in junction sought for was not granted. The rights he claimed consisted of the right of passage and the right to use the land as Sahan for purposes of sitting and sleeping. The defence was that the plaintiff had no such right and that the land belonged to the defendants and that they had the right to dig foundations and make constructions. The trial Court dismissed the suit. On ap peal by the plaintiff the additional CivH Judge reversed the trial Court's decree and decreed the suit and issued the injunction prayed for. Aggrieved by the decree, the defendants have come up in second appeal.

(2.) LEARNED counsel for the appel lants has contended firstly, that the findings recorded by the lower appellate Court are not findings but the only argument advanc ed is that they cannot be sustained on a proper appreciation of the evidence. It is not open in the second appeal to upset the findings of the fact recorded by the first appellate Court after due consideration of the oral and documentary evidence produc ed in the case, only on the ground that another conclusion is possible if a reap-appraisement of the evidence is made. The rending of the lower appellate Court is that the defendants have failed to prove their title over the land in suit The defendants had relied upon the sale deed hi their favour dated 28-12-1962 in which this land was shown as belonging to the vendor, but the defendants failed to show that their vendor had any title hi this land. The evidence pro duced by the defendants regarding posses sion was also disbelieved by the Court be low and it has recorded a finding that the defendants were neither to possession nor had ever used this land. The finding that the defendants were neither the owners nor hi possession of the land hi suit being bas ed on evidence, has to be taken as final.

(3.) EASEMENT has been defined in Section 4 of the Easements Act as:-