The first appellate court has the jurisdiction to modify the judgment and findings of the trial court if they are contrary to the settled proposition of law and the findings are based on due appreciation of evidence by assigning reasons.

JUDGMENT

1. The instant second appeal under Section 100 of Code of Civil Procedure has been filed by appellant-plaintiff, assailing the judgment and decree dated 25.08.2012 passed in Civil First Appeal No.16/2009 by the Court of Additional District Judge No.1, Alwar, whereby and whereunder the first appellate court has modified the decree for permanent injunction passed in Civil Suit No.306/2003, filed by the appellant-plaintiff, by the Court of Civil Judge (Jr. Division), No.1, Alwar to the extent that out of disputed portion of passage/gallery having 3.6 X 5 feet wide, the portion of 2 feet 3 inch shall remain common and opened but rest part of the judgment and decree dated 21.01.2009 has been maintained. For ready reference, the operative portion of the impugned judgment and decree dated 25.08.2012 is being extracted hereunder:-

^^ifj.kker% vihykFkhZ izfroknhx.k }kjk izLrqr ;g vihy vkaf'kd :i ls Lohdkj dh tkdj v/khuLFk U;k;ky; }kjk ikfjr vkyksP; fu.kZ; o fMØh fnukad 21-01-2009 dks vikLr fd;k tkdj ;g fu/kkZfjr fd;k tkrk gS fd okni= ds lkFk layXu uD'kk izn'kZ&1 esa izFke eafty ij n'kkZbZ xbZ 2&3^^ 'kkeykrh xyh 'kkeykrh ySfVu ls gksdj izfroknhx.k dh [kqyh Nr rd tkjh jgsxh vkSj blds vykok 'ks"k LFkku ds laca/k esa oknh ds mi;ksx&miHkksx es izfroknhx.k dksbZ ck/kk ugh MkysaxsA ipkZ fMØh cuk;h tkosA^^

2. Heard learned counsel for both parties and perused the impugned judgments and record.

3. From perusal of the order sheet dated 30.01.2015, it appears that notices of this second appeal were issued, on the statement of counsel for appellant that the dispute is between two brothers and possibility of compromise may not be ruled out. It appears that no compromise has arrived at between parties and respondents have appeared through their advocate to contest the appeal.

4. Appellant-plaintiff has instituted the present civil suit for prohibitory and mandatory injunction on 26.08.2003, claiming an area of 3 feet 6 inch in their sole ownership on the basis of one compromise between plaintiff-Dal Chand Saini and his father-Ganga Sahai Saini and prayed for injunction against defendants No.1 to 6, who are cousin brothers of plaintiff to the effect that defendants may not obstruct the plaintiff to raise construction in that portion, shown by the red colour in the map appended with the plaint. The trial court, vide judgment and decree dated 21.01.2009, decreed the plaintiff’s suit.

5. Defendants No.1 to 6 challenged the judgment and decree dated 21.01.2009 by way of filing first appeal. Before the first appellate court, it was pointed out that compromise dated 22.01.2003 entered into between the plaintiff- Dal Chand Saini and defendant No.7-Ganga Sahai Saini, who are son and father in the suit for partition is an inter se compromise and defendants No.1 to 6 were neither party in that suit nor are bound by that compromise. Rather, as per the map (Exhibit-A1 and Exhibit-A4, it transpired that a common way of 2 feet and 3 inch wide was left open for the common use. The plaintiff, in respect of map (Exhibit-A4 and A1) could not dispute the factual aspect of leaving a common way for 2 feet and 3 inch.

The first appellate court also pointed out that the plaintiff admits that one map (Exhibit-A5) was produced in the partition suit on behalf of his father, by making signatures of his father. In that factual matrix, the first appellate court has modified the judgment and decree dated 21.01.2009, only to the extent of leaving the common passage/gallery of 2 feet 3 inch wide and rest part of the decree has been maintained.

6. The appellant-plaintiff has challenged the judgment and decree dated 25.08.2012 to the extent of modification made in the decree dated 21.01.2009.

7. The first appellate court has placed reliance on documents (Exhibit-A1 and Exhibit-A4) as also report of Court Commissioner to record a fact finding that a gallery/passage of 2 feet 3 inch wide is left open for common use to between both the parties. The first appellate court observed that th