The importance of evidence in proving claims and the limited scope of interference in second appeals under Section 100 CPC.

JUDGMENT

1. The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by appellant-defendant, assailing the judgment and decree dated 11.05.2015, passed in Civil Regular Appeal No.414/2009 (33/01) by the Court of Additional District Judge, Sawai Madhopur (Rajasthan), affirming the judgment and decree dated 02.06.2001, passed in Civil Suit No.12/1998 by the Court of Civil Judge (Junior Division) and Judicial Magistrate, Khandar, District Sawai Madhopur, whereby and whereunder respondent-plaintiff’s suit for prohibitory and mandatory injunction has been decreed on merits in following manner:

^^okn oknh fo:) izfroknhx.k okLrs vkns'kkRed LFkkbZ fu"ks/kkKk dk vakf'kd :i ls Lohdkj fd;k tkdj vkns'kkRed fu"ks/kkKk ls ikcan fd;k tkrk gS o okn ds layXu utjh uD'ks es ,-ch-lh-Mh- ekdZ LFkku ls Vkijh] iRFkj o vU; dksbZ Hkh O;o/kku ogka ij ls gVkys o 12 QhV jkLrs esa dksbZ vojks/k mRiUu gks rks mls gVkys rFkk LFkkbZ fu"ks/kkKk ls ikcan fd;k tkrk gS fd oknh ds vkxs jkLrk pkSd dh iMr Hkwfe esa O;o/kku dks gVkys mijkar mlds mi;ksx miHkksx es u Loa; ck/kk mRiUu djs u gh fdlh vU; us djokosA ekeys dh ifjfLFkfr es i{kdkjku eqdnek lEca/h O; viuk viuk ogu djsaxsA rnuqlkj fMØh ipkZ eqrhZc fd;k tkosA^^

2. Heard counsel for appellants and perused the record.

3. It appears from the record that respondent-plaintiff instituted civil suit for prohibitory and mandatory injunction seeking removal of the obstruction and for protection of the way of 12ft wide, situated towards northern side of his plot allotted by the Gram Panchayat. The encroachment, alleged to be made by defendants, was shown in the map appended with plaint and it was prayed that the place marked A, B, C & D, be kept free from obstruction, for having free movement through the way in question. Plaintiff, on the basis of allotment issued by the Gram Panchayat, contended that towards northern side of his plot a way of 12ft is situated, which is being obstructed by defendants.

4. Defendants submitted written statement and contended that the land, for which plaintiff is claiming his way, is in fact a bada, which is being used by defendants to tether their cattle and same is the allotted land to defendants.

5. Learned trial court, after framing issues and recording evidence of both parties, concluded that plaintiff has proved the existence of way and has led evidence that defendants have encroached upon the way by raising some temporary structure. Per contra, defendants could not lead any evidence to show that the disputed land was ever allotted to them or remained in their possession, to be used for bada. After appreciation of evidence of both parties, learned trial court decreed plaintiff’s suit vide judgment and decree dated 02.06.2001.

6. Appellant-defendant preferred first appeal, challenging the judgment and decree dated 02.06.2001. The first appellate court, on re-appreciation of entire evidence, concurred with fact findings of the trial court and dismissed the first appeal vide judgment and decree dated 11.05.2015.

7. Both courts below, on the basis of appreciation and reappreciation of evidence, have concurrently held that as per the allotment of plot to plaintiff, through patta (Ex-8) by the Gram Panchayat towards the northern side of his plot, a way of 12ft wide exists. Accordingly, the evidence including statements of witnesses, photographs and report of Court Commissioner, it has been concluded that defendants have made some encroachment of temporary nature on the way in question. Further, both courts below have observed that defendants could not adduce any evidence to show any right or old possession over the disputed part of the land. The concurrent findings are based on material available on record, as such are not required to be interfered with in second appeal. Counsel for appellants could not point out any perversity in fact findings nor could show that such findings are based on misreading/non-reading or no evidence.

8. The Hon’ble Supreme Court in ca