KANCHAN BATHAM Vs. VINAY KUMAR BAIRAGI

JUDGEMENT

(1.) BY the Second Appeal under Section 100 of the CPC the appellant Kanchan Batham has challenged the judgment and decree dated 20.8.2008 passed by the IIIrd Additional District Judge, Shivpuri in Civil Appeal No. 3 -A/08 confirming the judgment and decree passed by the trial Court in Civil Suit No. 63 -A/06.

(2.) THE facts in a nutshell are that the plaintiff appellant Kanchan Batham had filed a suit stating that he was the owner of agricultural land and for the purpose of transport and for bringing the plough, bullocks and tractors in the east side of AB road, there was a road which was 25 ft. wide and used by the plaintiff for 25 -30 years. The road was in the form of medh constructed at survey No. 285 that to the north, and Bhawani Shankar had constructed a house on survey No. 287 and to the south, the respondent defendant had his agricultural land; that the plaintiff was the owner of survey No. 287 also and from the main gate in the west till the east 140 ft. long road with the width of 25 ft. was being used by the plaintiff uninterruptedly for agricultural as well as transport purposes. Thus he had acquired easementary rights whereas defendant No. 1 Vinay Kumar Bairagi was trying to oust the plaintiff from the said land. The plaintiff claimed permanent injunction stating that the road should be reflected in the revenue records as belonging to the plaintiff. The trial Court however on considering the rival contentions and the evidence available on record dismissed the suit. The appellate Court also upheld the findings and hence the present appeal.

(3.) COUNSEL for the respondents, however, fully supported the impugned judgment passed by the Court below. Counsel for the respondent No. 1 vehemently urged the fact that the appointment of a Commissioner was not at all called for in the circumstances and an appointment of the Commissioner was always to the subjective satisfaction of the learned Judge. Counsel urged that there is a concurrent finding of the fact in favour of the respondents and no substantial questions of law arises in this appeal. Counsel prayed that the appeal be dismissed.