JUDGMENT :

SANJAY K. AGRAWAL, J.

1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff are as under:

“1. Whether in the facts and circumstances of the case the Courts below have committed an error and not considering as to whether or not the plaintiff is entitled for grant of decree of injunction as prayed in paragraph 14 B, C of the plaint?

2. Whether failure to frame proper issue for trial regarding plaintiff right to obtain permanent injunction has vitiated the trial?”

For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court.

2. The plaintiff herein filed a suit claiming the right of easement over the passage on Khasra Nos. 1095/13 and 1095/31 situated at village Mangla, Tahsil and District Bilaspur and also sought decree for injunction by removing obstruction i.e. boundary wall constructed by defendant No. 1 and iron gate to obstruct the passage of the plaintiff. The plaintiff also sought relief for recovery of possession of 2 x 49 feet encroached by defendant No. 1 by constructing boundary wall on the said khasra numbers.

3. Resisting the suit, defendant No. 1 filed his written statement and denied the averments made in the plaint stating inter-alia that the plaintiff is not entitled for right of easement as claimed and he has not encroached upon the plaintiff's land and as such, the suit as framed and filed deserves to be dismissed.

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 29.4.2010, partly decreed the suit holding that the plaintiff has easementary right over passage/suit way, but further held that the plaintiff is not entitled for decree for possession of the aforesaid land i.e. 2 x 49 feet on the ground that the plaintiff has failed to prove that defendant No. 1 has encroached upon his land. On appeal being preferred by the plaintiff, the first appellate Court has affirmed the judgment and decree of the trial Court and dismissed the appeal, against which, this second appeal under Section 100 of the CPC has been filed by the appellant/plaintiff, in which two substantial questions of law have been formulated by this Court, which have been setout in opening paragraph of this judgment for sake of completeness.

5. Mr. H.V. Sharma, learned counsel for the appellant/plaintiff, would submit that the first appellate Court has committed an error in not considering as to whether or not the plaintiff is entitled for grant of decree of injunction as prayed in paragraph 14 B and C of the plaint. He would further submit that failure to frame proper issue for trial regarding plaintiff right to obtain permanent injunction has vitiated the finding of two Courts below to that extent and is liable to be set aside. He would rely upon the judgment of the Patna High Court in the matter of Sarab Lall Jha and Another vs. Ucheshwar Jha and Others, AIR 1972 Patna 490 to buttress his submission.

6. On the other hand, Mr. Badruddin Khan, learned counsel for respondent No. 1/defendant No. 1, would submit that the trial Court has already granted decree qua easementary right to the plaintiff which the defendant has not questioned either by filing appeal before the first appellate Court or before this Court and that decree has become final and decree for possession has not been granted with regard to 2 x 49 sq. ft. of land as the plaintiff has failed to prove that defendant No. 1 has encroached over the plaintiff's land.

7. I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove thoughtfully and also went through the records with utmost circumspection.

8. In a suit filed by the plaintiff claiming easementary right under Section 13 of the Indian Easements Act, 1882 and recovery of possession qua 2 x 49 sq. ft. of land, the trial Court clearly recorded a finding that out of K