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.

JUDGMENT :

Madan Gopal Vyas, J.

The defendant No. 1-appellant has preferred the present civil second appeal under section 100 of CPC against the judgment and decree dated 07.02.2014 passed by the learned Additional District Judge No. 1, Chittorgarh (hereinafter referred to as the learned First Appellate Court) in Civil First Appeal No. 23/2008 whereby the learned First Appellate Court dismissed the appeal filed by the defendant No. 1-appellant and affirmed the judgment and decree dated 01.11.2007 passed by the learned Additional Civil Judge (Junior Division), Chittorgarh (hereinafter referred to as the learned trial Court) in Civil Original Suit No. 39/2006 (119/2005) whereby the learned Trial Court decreed the suit filed by the plaintiffs-respondents herein seeking decree of permanent injunction and declaration.

2. Briefly stated, facts of the case as stated in suit are that the plaintiff was allotted a residential plot in Gram Panchayat, Samri and Patta No. 13053 dated 30.11.1975 was issued in his favour. It was stated that when the plot in question was handed over to the plaintiff, a residential house was already constructed and on the western side of the plot, there is residential house of defendant No. 1 and in between the boundary wall of plot of the plaintiff and defendant No. 1, there is a public way. In the suit, it was stated that the boundary wall and wooden gate of plaintiff's property was demolished by the defendants and the defendants have put rocks on the public way resulting into non-access of the public way to the plaintiff. Therefore, seeking decree of permanent injunction and declaration, the plaintiff preferred the suit.

3. The defendants submitted that the residential house in question is not of the plaintiff and the plaintiff had sold out the said house to the defendant No. 1 on 20.06.2004 for a consideration of Rs. 35,001/- and the defendant is in power and possession of the house in question from the last 30 years. It was also submitted that there was no way on the western side of the house in question.

4. On the basis of the pleadings of the parties, the learned Trial Court framed three issues. On behalf of the plaintiff, two witnesses were examined and one document was exhibited. On behalf of the defendant, three witnesses were examined and no documentary evidence was adduced.

5. After conclusion of the trial, the learned Trial Court decreed the suit in favour of plaintiff.

6. Aggrieved by the judgment and decree dated 01.11.2007, the defendant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court too vide judgment dated 07.02.2014 rejected the appeal so preferred by the defendant-appellant and affirmed the judgment and decree dated 01.11.2007 passed by the learned Trial Court.

7. Challenging the aforesaid judgment and decrees, learned counsel appearing for the defendant-appellant submits that the learned Courts below have committed material illegality while granting decree of permanent injunction in absence of any claim for relief of possession. It is submitted that even PW-2 has admitted that the defendant-appellant is in possession of the disputed house and the disputed public way. Learned counsel submits that learned Courts below have completely ignored the admission made by the witness PW-2. Further, when the plaintiff was not in the possession of the disputed house, the learned Courts below have committed illegality while granting decree of injunction in favour of the plaintiffs. It is further submitted that there is no evidence available on record to show that the defendant has stalled/caused obstruction in the disputed public way. Learned counsel submits that the learned Courts below have committed error while granting the reliefs, which were never even prayed by the plaintiffs, therefore, it is submitted that while admitting the present appeal, the proposed substantial questions of law may be framed.

8. Heard learned counsel for the appellant and perused the m