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.

JUDGMENT :

SUDESH BANSAL, J.

1. Dispute in these two appeals is in respect of encroachment over a public way which is a connecting road between Achhan Kanwar Colony and Master Colony at Kekri, District Ajmer.

2. Undisputedly, width of public way is 20 feet wide but upto 11 feet width, encroachment exists thereupon and only 9 feet wide way is available at site. The dispute is pending since 1993.

3. Appellants in both the appeals are common parties, who are holders of Plots No. 2 and 8 respectively in Achhan Kanwar Colony, Kekri and the alleged public road exists in front of their houses.

4. Appellants instituted a Civil Suit No. 38/1993 titled as Ghisalal Vs. Hari Pratap Singh , stating inter alia, that the encroachment over the public way have been made by the plot holders of Plots No. 3 and 9 of Achhan Kanwar Colony and not by them. Plot holders of Plots No. 3 and 9 as also plot holders of Plot No. 4 and 10 were made party defendant in the civil suit. That civil suit was contested by the defendants, alleging inter alia, that indeed the encroachment over the public way have been raised by the plaintiffs. Both parties adduced their respective evidences and finally, Civil Judge (Senior Division) No.1, Kekri, Ajmer after analytical discussion of oral and documentary evidences of both parties, came to the conclusion that encroachment over the public way have not been raised by the plot holders of Plots No. 3 and 9, rather encroachment is of plaintiffs and with such observations, plaintiffs’ suit was dismissed on merits vide judgment dated 29.04.2011. The civil first appeal, filed thereagainst by plaintiffs, has also been dismissed affirming the facts findings of the trial Court, vide judgment dated 28.05.2022 by the Additional District Judge No.2, Kekri, District Ajmer, whereagainst present S.B. Civil Second Appeal No. 228/2022 has been filed by plaintiffs under Section 100 of the CPC.

5. In another Civil Second Appeal No. 487/2025, a decree of mandatory injunction, to remove the encroachment of appellants- defendants has been passed in Civil Suit No. 59/2003 titled as Jagannath Singh Vs. Ghisa Lal , by the Court of Senior Civil Judge No. 2, Kekri, District Ajmer, and the judgment and decree dated 09.12.2015 has been affirmed in the first appeal, vide judgment dated 25.08.2025 by Additional District Judge No.1, Kekri, District Ajmer. This civil suit was filed by as many as four plaintiffs, in a representative capacity, invoking the provisions of Order 1 Rule 8 CPC, seeking to remove the encroachment of defendants No.1 & 2 from the public way and to direct the Nagar Palika, Kekri, to keep the public way encroachment free. Since, in this suit, decree has been passed against the appellants who were defendants No.1 and 2 in the suit, they have preferred the Civil Second Appeal No. 487/2025 invoking jurisdiction of the High Court under Section 100 CPC.

6. In both the appeals, subject matter of dispute in issue is similar and appellants are common, hence, vide order dated 31.10.2025, both appeals were ordered to be tagged and with the consent of counsel for appellants, have been heard together, which shall stand decided by this common judgment.

7. Heard counsel for appellants at length and perused the record of the Courts below.

8. For ready reference, impugned judgment and decree dated 09.12.2015 passed against appellants in Civil Suit No. 54/2010 {59/2003} is being reproduced herein:-

9. As has been noticed hereinabove that it is not in dispute that on the public way of 20 feet wide, encroachment upto 11 feet exists at