SHRI GIRDHARI Vs. SHRI RAM SHARAN

JUDGEMENT

(1.) THIS second appeal has been filed by the defendants -appellants (hereinafter 'the defendants') against the judgment and decree dated 27.11.1998, passed by the Additional District Judge, Bayana, District Bharatpur upholding the judgment and decree dated 30.05.1989, passed by the Additional Munsif & Judicial Magistrate (First Class), Bayana in civil suit No. 50/1980 whereby the plaintiffs' -respondents' (hereinafter 'the plaintiffs') suit for permanent injunction had been decreed by the learned trial court. Dr. P.C. Jain, appearing for the defendants has emphatically submitted that the findings of the courts below purporting to be based on an agreement of 1918 between the ancestor of the parties and the decree of the trial court based thereon is absolutely perverse. Counsel has submitted that the courts below addressing a suit for permanent injunction ought to have confined themselves for the determination of the question as to whether the plaintiffs were indeed in possession of the suit property. It has been submitted that the possession of the plaintiffs over the suit property on the compromise decree of 1918 was not established and the learned courts below have misconstrued the terms of the said compromise. Counsel has submitted that in this view of the matter, the learned courts below have failed to address the fundamental question of possession of the plaintiffs over the suit property before granting a judgment and decree of permanent injunction and on this count the substantial questions of law raised in this second appeal are made out.

(2.) MR . B.L. Agarwal, appearing for the plaintiffs, on the other hand has submitted that the learned courts below have held the possession of the plaintiffs over the suit property on the preponderance of probability deduced from the evidence on record. It has been submitted that in view of the compromise decree of 1918 and the plaintiffs coming into possession of the suit property thereunder, aside of the other issues continuity of possession of the plaintiffs over the suit property will have to be presumed in law. That presumption was not rebutted from their flimsy and contradictory evidence before the trial court. Counsel has submitted that even otherwise from the evidence on record including the report of the Commissioner (Ex -D/9), the possession of the plaintiffs over the suit property and authenticity of their case was made out. It has been submitted that the courts below have further taken into consideration the falsity in the defence of the defendants with regard to any preexisting window, ventilator made by them as alleged towards the southern platform in the ownership or possession of the plaintiffs. It is submitted that the judgments of the courts below based on the evaluation of the credibility of the witnesses for the parties before them and the preponderance of probability of the case set up by the plaintiffs and their evidence on record cannot be interfered with in this second appeal under Section 100 CPC.

(3.) THE judgments and decrees of the courts below granting a decree of permanent injunction in favour of the plaintiffs is findings of fact based on a detailed analysis of the evidence as also the determination on the credibility of the witnesses for the parties by the trial court found good by the first appellate court. The courts below have construed the compromise decree of 1918 as entailing possession of the suit property in favour of the ancestors of the plaintiffs and thereafter devolving upon them. In my considered opinion, the findings of fact of the courts below cannot be put through a third roll of dice and evidence re -appreciated on the askance of the defendants.