JODHRAJ Vs. DHANRAJ

JUDGEMENT

(1.) BELA M. TRIVEDI J. The present second appeal has been filed under Section 100 of CPC, against the judgment and decree dated 20.3.2009 passed by the Addl. District Judge, Ramganj Mandi, Kota(hereinafter referred to as the "appellate court") in Civil First Appeal No. 9 of 2006, whereby the appellate court has allowed the said appeal of the respondent-plaintiff filed against the judgment and decree dated 23.3.2006 passed by the Civil Judge (JD), Kanwas (hereinafter referred to as the "trial court") in Civil Suit No. 18 of 2000.

(2.) THE short facts giving rise to the present appeal are that the respondent-plaintiff filed the suit before the trial court seeking permanent and mandatory injunction against the appellants-defendants alleging interalia that there existed a house along with a Bada which was 72 hands long and 49 hands in width, situated at village Bachiheda Tehsil Sangod which was purchased by the father of the plaintiff in the Samvat 2003. It was also alleged that the said disputed land was being used by the plaintiff for going to the Bada and for taking bullock carts and the appellants-defendants were trying to interfere the plaintiff from using the said land. The said suit was resisted by the appellants-defendants by filing written statement contending interalia that there was no way as alleged and the plaintiff did not have any right over the disputed land. The trial court after appreciating the record, dismissed the suit of the respondent-plaintiff. Against which, the plaintiff preferred an appeal. The appellate court vide the impugned judgment and decree allowed the said appeal setting aside the judgment and decree of the trial court.

(3.) HAVING regard to the submissions made by learned counsel for the appellants and to the record of the lower court, it transpires that the appellate court has reversed the findings of facts recorded by the trial court. It is true that the appellate court has agreed with the finding of the trial court with regard to the document Ex.2, however it has been further observed by the appellate court that merely because the record was not available in the Gram Panchayat,Hingonia, it could not be said that the document Ex.2 could not be relied upon. The appellate court has also relied upon the document Ex.1 which was 62 years old document in which there was a mention about the disputed way. The learned counsel Mr. Sharma has failed to point out as to how the finding of facts recorded by the appellate court were perverse or illegal. Merely because two views are possible on the appreciation of evidence, it could be said that the substantial question of law is involved in the appeal.