The court emphasized the importance of substantial questions of law in entertaining second appeals and upheld the decrees based on the evidence presented.

JUDGMENT/ORDER :

1. All three second appeals arise out of the Civil Suit for prohibitory and mandatory injunction filed by plaintiff-Govind Singh, being power of attorney holder of Smt. Krishna Kumari against the defendant-Gajaraj Singh and in that suit defendant- Gajraj Singh has filed counter claim seeking prohibitory injunction against plaintiff.

2. The dispute between the parties, is in relation to the gully of 8 feet width, situated between the houses of both parties. Both parties are neighbors.

3. The trial court, although recorded fact finding that the gully of 8 feet wide, exists between the houses of both parties yet dismissed the plaintiff's suit for prohibitory and mandatory injunction and simultaneously dismissed the counter claim of the defendant vide judgment and decree dated 21.01.2006.

4. Plaintiff, feeling aggrieved by the dismissal of his suit for prohibitory and mandatory injunction, challenged the judgment and decree dated 21.01.2006 by filing Civil First Appeal registered as C.F.A No.11/2006. The defendant challenged the judgment and decree dated 21.01.2006 to the extent of dismissing his counter claim and defendant's first appeal was registered as C.F.A. 19/2006.

5. Plaintiff's appeal No. C.F.A. 11/2006 has partly been allowed by the first appellate court being the Additional District Judge No.2, Bharatpur, vide judgment and decree dated 06.05.2015 and the judgment of trial court dated 21.01.2006 has been set aside to the extent of dismissing the plaintiff's suit for prohibitory injunction. The first appellate court has passed a decree for prohibitory injunction against the defendant to maintain the status of the gully in question, having 8 feet width, intact but dismissed the plaintiff's prayer for seeking mandatory injunction, to remove the construction of defendant, alleged to be raised in the gully. The first appellate court, in its judgment dated 06.05.2015, categorically observed that plaintiff has not clarified as to what nature of construction has been raised by the defendant in the gully in question, hence in absence of specific details and evidence, no decree for mandatory injunction was passed.

6. Against the judgment and decree dated 06.05.2015 passed in Civil First Appeal No. 11/2006 by the Additional District Judge No.2, Bharatpur, the plaintiff has preferred Civil Second Appeal No.369/15, to pursue his prayer of mandatory injunction whereas the defendant has preferred Civil Second Appeal No. 305/2015, feeling aggrieved by the grant of prohibitory injunction against the defendant to maintain the gully in question intact.

7. The Civil First Appeal No.19/2006 preferred by the defendant against the dismissal of his counter claim, came to be dismissed by the separate judgment dated 06.05.2015 and there against defendant has preferred Civil Second Appeal No.311/15, to pursue his counter claim in relation to the gully in question.

8. Hence, all three second appeals have come up before this Court in the backdrop of aforesaid facts.

9. Heard learned counsel for both parties and perused the impugned judgments of courts below.

10 It appears from record that plaintiff-Govind Singh instituted a Civil Suit for prohibitory and mandatory injunction in the year 2002, alleging inter alia that his residential house is situated at Neem Darwaja, Bharatpur, which was purchased by Smt. Krishna Kumari through registered sale deed dated 03.05.1979 from one Smt. Prakash Devi. Plaintiff is the power of attorney holder of Smt. Krishna Devi, who has also been made party as plaintiff No.2. It has been averred in the plaint that towards western side of plaintiff's house, the residential house of defendant is situated after leaving 8 feet wide gully. Plaintiff averred that in this 8 feet wide gully, windows, ventilators etc. of plaintiff's house have their opening and this gully is of common use between both parties. Plaintiff averred that during winter breaks of the month of December, 2000, the defendant has raised some constructi