The main legal point established in the judgment is that the burden of proof lies with the plaintiffs to prove their case by their own evidence, and re-appreciation of evidence is not permissible within the scope of Section 100 of CPC unless there is some illegality or perversity in findings.

Headnote:
CPC - Civil Suit - 100 - The court dismissed the appellant-plaintiffs' civil suit for permanent injunction, possession, and seeking demolition of construction of defendants on the grounds that the plaintiffs failed to prove the encroachment by the defendants over the portion of the plaintiffs' bada. The courts below have recorded concurrent findings of fact based on the material available on record.
Fact of the Case:

The appellant-plaintiffs filed a civil suit for permanent injunction, possession, and seeking demolition of construction of defendants over a bada. The trial court dismissed the suit as the plaintiffs failed to prove the encroachment by the defendants over the portion of the plaintiffs' bada. The first appellate court affirmed the decision.
Finding of the Court:

The courts below have recorded concurrent findings of fact based on the material available on record and found that the plaintiffs failed to prove the encroachment by the defendants over the portion of the plaintiffs' bada.
Issues: The main issue was whether the defendants had encroached upon the plaintiffs' bada, and whether the plaintiffs had provided sufficient evidence to prove the encroachment.
Ratio Decidendi: The court held that the plaintiffs failed to prove the encroachment by the defendants over the portion of the plaintiffs' bada, and the courts below had not committed any jurisdictional error in considering the site report and reaching their findings.
Final Decision: The second appeal was found to be devoid of merits and was dismissed. No order as to costs was given, and pending applications were disposed of. The record of the two Courts below was to be sent back forthwith.

JUDGMENT

1. Appellant-plaintiffs have preferred this second appeal under Section 100 CPC against the judgment and decree dated 31.03.2016 passed by Additional District Judge No.2, Jaipur District Jaipur in civil first appeal No.37/2014 affirming the judgment and decree dated 27.05.2014 passed by Additional Civil Judge (Sr.D.) No.2, Jaipur District Jaipur in Civil Suit No.31/2013 (188/08, 75/09) whereby and whereunder appellant-plaintiffs' civil suit for permanent injunction, possession and seeking demolition of construction of defendants has been dismissed on merits.

2. Heard counsel for appellants and perused the record.

3. It appears from the record that appellant-plaintiffs instituted a civil suit in relation to the bada described in para No.2 of the plaint and shown by mark ?, ?, ?, ? in the site map appended with the plaint. Plaintiffs brought a case that in that bada, defendants entered into possession over the part of 16' X 3.6' towards the eastern-southern side of the bada that part over which defendants have been alleged to be encroached over the plaintiffs' bada have been shown with yellow colour in the site map. Plaintiffs' case, in the plaint itself is that Nagar Palika, Chaksu has regularized the possession of defendants over an area of 38' X 32' but defendants have raised construction in excess to their regularized area by entering into 3.5' excess land towards the plaintiffs' bada.

4. Respondent-defendants submitted written statement and contended that they have raised construction within the parameters of their regularized land comprising 38' X 32' which has been regularized in their favour by the Nagar Palika, Chaksu. Defendants did not dispute the possession of plaintiffs over the bada however, has denied that defendants have not encroached over any part or portion of the bada of plaintiffs.

5. In context to respective pleadings of both parties, learned trial court framed issues. Both parties adduce their oral and documentary evidence in support of respective issues.

6. That the trial court on appreciation of evidence of pleadings and evidence observed that plaintiffs are in possession of bada but have not shown any ownership and specification, measurement of the bada as detailed out in the site map. The trial court observed that plaintiffs have not produced sufficient evidence to show that defendants have entered into possession by 3.5' towards the plaintiffs' bada, in excess to the land area of 38' X 32' regularized by the Nagar Palika, Chaksu in favour of defendants. It appears from the record that on request of appellants, the trial court appointed the Tehsildar to inspect the site and submit report. The Tehsildar, in pursuance to the proof of the trial court inspected the site and submitted site report dated 28.03.2013 on record. As per site report of the Tehsildar, defendants' construction was not found beyond the area of 38' X 32'. The oral evidence of parties were not found in consonance with the documents, hence the trial court, on appreciation of entire evidence on record, did not find the case of plaintiffs as proved that defendants have entered into possession over the plaintiffs' bada by covering a portion of 16' X 3.6' and consequently, the suit was dismissed.

7. Appellant-plaintiffs preferred first appeal against the judgment and decree dated 27.05.2014. The first appellate court re-heard and re-considered the entire material on record. The first appellate court, while deciding issue No.1 has observed that as the issue of the ownership of plaintiffs over the bada is not involved in the present suit, hence the same was not adjudicated. The first appellate court while deciding issue No.2, observed that the bada of plaintiffs and their neighbour namley, Jeevan Ram are in the similar lines and as per the site report, it is not proved that defendants have entered into the bada of plaintiffs to the extent of 3.5' after demolishing their boundary wall. The first appellate court placed reliance on the report

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