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MAHENDAR KUMAR GOYAL
Birdhichand – Appellant
Versus
Ayodhyabai – Respondent
JUDGMENT :
Mr. Mahendar Kumar Goyal, J. - The civil Second appeal is preferred against the judgment and decree dated 01.05.2019 passed by the learned Additional District Judge, Jhalawar (for brevity, "the learned Appellate Court") in Civil Regular Appeal No.16/2013 whereby, while dismissing the appeal, the judgment dated 22.08.2013 passed by the learned Additional Civil Judge (Senior Division) Jhalawar (for brevity, "the learned trial Court") decreeing the Suit No.05/2011 filed by the respondent/plaintiff (for brevity, "plaintiff") for mandatory and permanent injunction, has been affirmed.
2. The relevant facts in brief are that the plaintiff filed a suit for permanent and mandatory injunction against the appellant/defendant (for brevity, "defendant") with the averments that he wanted to encroach upon a 10 feet wide public way situated in between the plots of the parties. The defendant denying existence of any public way in between their plots in his written statement, filed a counter claim seeking a decree of injunction against the plaintiff not to encroach upon land of his plot.
3. On the basis is pleadings of the parties, the learned trial Court settled three issues.
4. After record
The validity of patta and possession rights in a property dispute.
The importance of evidence in proving claims and the limited scope of interference in second appeals under Section 100 CPC.
The High Court affirmed that findings of fact by lower courts cannot be interfered with unless they are manifestly erroneous or based on inadmissible evidence under Section 100 of CPC.
Evidence cannot be reappreciated in a second appeal under Section 100 CPC, and concurrent findings of lower courts are upheld unless substantial questions of law arise.
The evidence presented can establish a claim even in the absence of specific pleading, if both parties knew the case of each other, proceeded to trial, and led evidence.
The judgment reinforces the principle that established public rights of way cannot be obstructed by private claims of ownership.
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