PABIA Vs. BADIA

JUDGEMENT

(1.) THIS is a second appeal by the defendants in a suit for injunction.

(2.) THE plaintiffs Badia, Pakhia, Nawala and Tala claimed that they were Bapidars of khasra No. 169 situate in village Deoli, Tehsil Desuri, and that they were in possession of the said land. Their case was that the defendants, (except the jagirdar of Deoli) who owned houses on the north-western and south-western side of their land had built a number of doors opening on to the plaintiffs' land and also carved out a new way through the said land and, therefore, they prayed for an injunction restraining the defendants from using the plaintiffs' land for purposes of passage and also an injunction enjoining them to close the doors in question. Out of the defendants, Samratha, Poma, Natha. Nawala, Bala, Hirka, Mania, pannia, Moti, Nawla and Hakia admitted the plaintiffs' claim and stated that they had opened the doors in question and the way at the instance of the jagirdar and that these did not exist ever before. The other defendants who are appellants in this Court resisted the plaintiffs' suit on numerous grounds. Their principal contention was that the Way and the doors were old. Both lower Courts decreed the plaintiffs' suit and granted them the injunction prayed for. The defendants' appellants have now come up in second appeal.

(3.) I may state at once that it is not open to the appellants to question certain findings of fact, which have been concurrently arrived at by the Courts below. One such finding is that the doors and the way in question have not been established to be old and were a recent creation. Another such finding is that the plaintiffs were the bapidars of Khasra No. 169 and were in possession thereof. Both lower Courts have found against the defendants on these points and their findings are binding on the Court in second appeal. Learned counsel for the defendants appellants strenuously argued, however, that the Courts below had fallen into error in granting the injunction to the plaintiffs in respect of the doors and the right of way because they had failed to arrive at a distinct and definite finding to the effect that the area of Khasra No, 169 extended right up to and touched the houses of the contesting defendants. Having given my careful consideration to this argument, I have come to the conclusion that it is without any substance. It appears to me that this point was not at all a subject of controversy in the Courts below. In fact, a perusal of the written statement filed by the contesting defendants, fairly read, leads one to conclude that their case in the trial Court was not that there was any intervening strip of land between the land of the plaintiffs and the houses of the contesting defendants, but that their case really was that the plaintiffs were not the owners of Khasra No. 169, and secondly that the doors and the way had not been made anew but were old. I am, therefore, of opinion that the defendants appellants cannot be allowed in this second appeal to make out a new case for the first time and I overrule this contention.