KHARPATTU Vs. GIRISH CHANDRA SHARMA AND 5 OTHERS

JUDGEMENT

(1.) Plaintiff-appellant's suit for injunction has been dismissed by both the courts below with concurrent findings returned on the basis of documentary evidence led by the parties. It is apparent that there exits a passage on spot and the plaintiff-appellant has not been able to make out that any of his land of plot no.59A/3 has been encroached. It has further been observed by lower appellate court that existence of this passage for the last more than 25 years is admitted to the plaintiff-appellant as well. The lower appellate court has further taken note of the fact that no endeavour was made by the plaintiff-appellant to appoint a survey commission in order to get his property identified so as to ascertain as to whether passage existed only of 4 ft. or it was wider at certain other paces.

(2.) Learned counsel appearing for the plaintiff-appellant submits that the findings returned by both the courts below are erroneous inasmuch as what was admitted by the plaintiff-appellant was the existence of passage having width of 4 ft. and the respondents had no right to lay road upon a width of more than 4 ft.

(3.) Having considered the submissions advanced, this Court finds that the findings returned by the courts below on the aspect of existence of public passage is admitted to the plaintiff-appellant. It is also not disputed that no endeavours were made by the plaintiff-appellant to get a survey commission appointed so as to have his share exactly identified on the spot. It has further come on record by way of commission report that the width of passage existing on spot varies from 51/2 ft. to 81/2 ft. throughout the passage. Since existence of passage is admitted and the plaintiff-appellant has failed to demonstrate that any of his land is being used as passage, the dismissal of plaintiff-appellant's suit by both the courts below cannot be said to be perverse. The endeavour made by learned counsel for the appellant to take the Court through the evidence so as to seek its re-appreciation is beyond the scope of proceedings under Sec. 100 CPC. The findings returned by both the courts below are based upon correct appreciation of facts and law. No substantial question of law arises for consideration in the present appeal.