RANDHIR KUMAR Vs. BHAGIRATH

JUDGEMENT

(1.) THE second appeal has been filed by the appellants -defendants, challenging the judgment and decree dated 24th April, 2008 passed by the Additional District Judge No. 2, Kishangarhbas, Alwar (hereinafter referred to as 'the Appellate Court') in Civil Regular Appeal No. 11 of 2005, whereby the Appellate Court has confirmed the judgment and decree dated 30th April, 2005 passed by the Civil Judge (Junior Division), Mundawar, District Alwar (hereinafter referred to as 'the Trial Court') in Civil Suit No. 23 of 1994.

(2.) THE respondent -plaintiff had filed the suit, seeking permanent injunction against the appellants -defendants in respect of the part of the open land marked as to in the map annexed with the plaint, alleging inter -alia that the respondent -plaintiff was the owner of the property shown as in the map annexed to the plaint and that the appellants -defendants were trying to demolish the wall shown as mark to and remove the stones laid at Mark in the said map, for using the said part of the plaintiff's property as a public way. According to the respondent -plaintiff, there was no public way going through his property, and the appellants -defendants had no right to create any new way by removing the Wall or removing the stones laid at the disputed site. The said suit was resisted by the appellants -defendants by filing the written -statement contending inter -alia that on the northern side of plaintiffs property, there was a passage of 4' wide used as public way and the said disputed passage was being used by the appellants since the time of their forefathers. It was also contended that the map annexed by the respondent -plaintiff was not showing the correct position. The Trial Court, after appreciating the evidence on record, decreed the suit of the respondent -plaintiff by granting permanent injunction as prayed for, vide the judgment and decree dated 30th April, 2005, against which the appellants had preferred the appeal before the Appellate Court, however, said appeal also came to be dismissed by the Appellate Court vide the judgment and decree dated 24/2/2008.

(3.) HAVING regard to the submissions made by the learned counsels for the parties, and to the judgments and decrees passed by the Courts below, it transpires that the Courts below have decreed the suit of the respondent -plaintiff by holding that there was no public way at the disputed passage as alleged by the appellants -defendants. Though it has been sought to be submitted by the learned counsel for the appellants that the appellants had sought to produce the certain documents, which were not permitted to be produced in the Trial Court as well as in the First Appellate Court, and this Court should consider the same, it is pertinent to note that the orders passed by the Courts below not permitted the appellants to produce the said documents having become final, the submission of the counsel for the appellants that the said documents should be looked into by this Court in the second appeal cannot be accepted. There cannot be any disagreement with the ratio of decision laid down by the Apex Court in case of Haryana State Industrial Development Corporation vs. M/s. Cork Manufacturing Co. (supra) to the effect that the finding recorded by the Courts below ignoring the legal evidence available in the case could be described as perverse findings, however, in the instant case, no such legal evidence was produced by the appellants -defendants in support of their contention that the disputed passage was a public way. Under the circumstances, the findings recorded by the Courts below could not be said to be a perverse findings. The learned counsel for the appellants has also not been able to show as to how the possession of the respondent -plaintiff in respect of the disputed passage was illegal possession. On the contrary, the respondent -plaintiff had been able to prove before the Courts below that the disputed passage was not the public way, and therefore, the appellants had no right to remove the wall shown as to or remove the stones lying at mark in the map annexed with the plaint.