IMPORTANT POINT
In a second appeal, the High Court will not interfere with concurrent findings of fact unless a substantial question of law is involved.

JUDGMENT :

The present civil second appeal under Section 100 CPC has been filed against the judgment passed by the learned Additional District Judge No. 1, Chittorgarh (hereinafter referred to as the learned Appellate Court) in Civil Appeal No. 66/2003 whereby the judgment and decree passed by the learned Additional Civil Judge (Senior Division) No. 2 Chittorgarh (hereinafter referred to as the learned Trial Court) in Civil Original Suit No. 220/2000 was confirmed.

2. The facts in nutshell giving rise to the present second appeal are that a suit for permanent injunction was instituted by the plaintiff-appellant on 13.04.1994 with averments that the appellant has a house situated in village Narela. It was averred that the defendents-respondents were raising construction on the western side of appellant’s house and had also encroached upon the eastern side of the house and had started digging the land. Learned Trial Court dismissed the suit of the appellant. Being aggrieved by the judgment of the learned Trial court, the appellant preferred an appeal which also came to be dismissed by the learned Appellate Court. Being aggrieved by the decision of the learned Appellate Court, the appellant has preferred the present second appeal.

3. Learned counsel for the appellant submitted that the findings given by the learned Trial Court as well as the learned Appellate Court are wrong and contrary to the material available on record. It is submitted that the defendants have not produced any patta/title deed in their favor to showcase that they were in possession of the land on which construction was being made. It is further submitted that the evidence has not been examined in proper perspective. It is submitted that the defendants have not been examined on oath. Thus, it is prayed that the decisions rendered by the learned Trial Court and learned Appellate Court be quashed and set aside.

4. Heard learned counsel for the appellant. Perused the material available on record.

5. Existence of substantial question of law is a sine-qua-non for maintainability of second appeal. At the stage of admission of the present appeal, the question that needs to be determined is that whether a substantial question of law is involved in the present second appeal or not.

6. While deciding the suit, learned Trial Court framed 3 issues. In favor of plaintiff, PW1-Indermal, PW2-Lakshman Singh and PW3-Mohan Singh were examined and Exhibit 1A, 2, 3 and 4 were produced in documentary evidence. In favor of defendents, DW1- Satyanarayan, DW2-Lalu Bharti and DW3- Narayanlal were examined and Exhibit A1 to A4 were produced in documentary evidence. Learned Trial Court as well as learned First Appellate Court, after examining the evidence available on record, decided both the issues against the appellant-plaintiff and dismissed the suit and the appeal. It was held by both the Courts that the appellant-plaintiff failed to prove his right, title or interest over the land in question and it was also held that the respondent-defendant did not raise any construction on the appellant-plaintiff’s side of property.

6. Exhibit-3 is the report of Commissioner and Exhibit-4 is the Nazri Naksha, from which it is clear that the respondents have initiated the construction work in their portion of land. Both Exhibit 3 and Exhibit 4 are signed by the appellant-plaintiff. From a perusal of plaint, in para no. 1 of the plaint, the neighborhood of the disputed premises has been mentioned. However, no dimensions of the property have been indicated. Suffice it to say that the burden of proving the dimensions of appellant-plaintiff’s land lies on the plaintiff. There is no evidence available on record to suggest that the land on which construction was done by the respondent-defendant belonged to the appellant-plaintiff. Thus, the findings arrived at by the learned Courts below that the plaintiff has failed to prove his right, title or interest over the property are correct and suffer from no