MAHABIR Vs. DAYAWATI

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for demolition of a projection. The plaintiff's case was that the projection in the form of a 'chhajja' made by the defendants extends upto the staircase belonging to the plaintiff. On that basis she claimed the decree. The defence was that there was no encroachment and, in the alternative, it was pleaded that the new chhajja had been built only to replace the old wooden chhajja. The trial court found the defendant's case proved and hence dismissed the suit. The appellate court has allowed the plaintiff's appeal and decreed the suit for removal of that part of the projection which extended over the staircase belonging to the plaintiff as indicated in the plaint map. The defendants have filed the second appeal.

(2.) THE lower appellate court has reversed the findings of fact recorded by the trial court about the extension of the chhajja over the plaintiff's land and about the replacement of the old chhajja by the new one. According to the findings of the appellate court there was no wooden chhajja which may have been replaced by the defendants. THE other finding is that the portion of the chhajja projects over the stairs belonging to the plaintiff. On these findings the court below has granted the relief.

(3.) LEARNED counsel for the appellants also contended that the finding recorded by the appellate court reversing that of the trial court to the effect that the projection made by the defendants extended over the land belonging to the plaintiff is vitiated in law. In the grounds of appeal it has been stated that the finding is against the weight of evidence. It is not possible to disregard a finding of fact on such a ground as this court in second appeal does not weigh evidence. LEARNED counsel then contended that the finding is vitiated because the admissions made by the plaintiff's own witnesses had not been taken into account by the appellate court. He has, however, been unable to point out any such admission. He then contended that the Commissioner's report has been wrongly relied upon. The appellate court has pointed out that the defendants had filed no objection to the Commissioner's report. He has thought fit to rely upon it and his reliance cannot be said to suffer from any error of law so as to vitiate the finding of fact recorded by him.