The appellate court's findings were upheld, affirming its jurisdiction and the validity of its decision despite the trial court's earlier ruling.

Order :

1. Heard the parties.

2. By the judgment and decree dated 29.3.2023 passed by Learned Additional District Judge, Jodhpur in Civil First Appeal No. 63/2015 (CIS No. 127/2014), the Appellate Court has reversed the findings of the trial Court’s judgment.

3. The plaintiff/appellant herein had brought the Original Civil Suit No.356/2011 (155/2008) for a decree of injunction against the respondents to not to make any construction in the 10 feet lane or if any construction is there, to remove the encroachment. The suit was decreed by the learned trial court, however, the first appellate court has reversed the finding of the trial court and held that construction on 5 feet out of 10 feet of the lane was already there at the time of purchase of the suit property by the plaintiff. However, the appellate court directed that the defendants/ respondents shall not cover the construction anyway to avoid inconvenience to the plaintiff to get light and air and the defendants shall maintain the upper side of construction open to sky.

4. While reversing the finding of the trial court, the appellate court noticed that the Commissioner report vide Ex.5 reveals that structure on the 5 feet out of 10 feet of the lane was already there at the time of purchase of house of Rafika Bano, however, the roof was not covered. Hence, direction was made not to cover the roof. The Court further found that the said construction was on the personal property and not on any public land.

5. The following questions have been raised as substantial question of law for decision in the second appeal:-

“(i) Whether the Ld. First Appellate Court has rightly allowed the First Appeal of the defendant / Respondent No.1 by reversing the well-reasoned finding of Ld. Trial Court ?

(ii) Whether the Ld. First Appellate Court has rightly given absolute right to Defendant for use and occupation of the disputed way ?

(iii) Whether Ld. First Appellate Court has rightly modified or alter the finding of the Ld. Trial Court on issue no. 1 & 2 ?

(iv) Whether the Ld. First Appellate Court has jurisdiction to hear and decide the first appeal without complying with the mandatory provisions of Order 41 Rule 31 of the Civil Procedure Code by not framing the points for determination ?

(v) Whether the findings arrived at by the Ld. First Appellate Court on the question of construction on the disputed way is vitiated on the account of pleading and evidence adduced by the plaintiff ?

(vi) Whether the Ld. First Appellate Court was justified in reversing the findings of Ld. Trial court about the use and occupation of the disputed way ?

(vii) Whether the finding of the Ld. First Appellate Court stands vitiated on the ground of misreading of the evidence ?

(viii) Whether judgment and decree passed by the Ld. First Appellate court are perverse on the count of non-consideration of the vital aspect of the case as submitted above ?”

6. Question No. (iv) is not applicable here as non framing of the points for consideration has not prejudicially affected the case of the appellant for the reason that the Appellate Court has decided both the issues decided by the trial court independently on consideration of oral and documentary evidence. Likewise, during argument, no perversity was pointed out in the appellate court’s judgment.

7. This Court cannot enter into re-appreciation of evidence, even to set aside any illegal finding, therefore, this second appeal stands dismissed as devoid of any merit.