Easementary rights claims must be substantiated by admissible evidence; a second appeal under Section 100 CPC requires a substantial question of law, not mere factual disputes.

JUDGMENT :

SUDESH BANSAL, J.

1. Heard counsel for both parties and perused the record.

2. This Civil Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the legal representatives of the original plaintiff- Kailash, who had filed a civil suit for mandatory and permanent injunction on 28.08.1993. The civil suit was dismissed on merits by judgment dated 28.05.2012 passed by the Civil Judge, Shahpura, District Jaipur and the first appeal filed thereagainst, was also dismissed vide judgment dated 06.09.2024 by the Additional District Judge No. 2, Shahpura, District Jaipur. Hence, the present second appeal has been filed assailing both the judgments.

3. It appears that the plaintiff and the defendants are neighbors, and the plaintiff claimed easementary right of opening his windows and ventilators towards the southern side in a gully measuring 3 feet. The plaintiff asserted his easementary right on the basis of a Panch Faisla dated 15.08.1993 (Exhibit–1). The Panch Faisla is an unregistered document, which was held to be inadmissible in evidence, however, it was allowed to be read as collateral evidence, vide order dated 25.01.1996.

4. Learned trial court, on appreciation of the Panch Faisla for collateral purposes, coupled with the oral evidence of both parties, recorded fact findings that at the time of execution of Panch Faisla, no windows or ventilators in the plaintiff’s house towards the southern side were open; rather, it was observed that only a wall was erected without flooring and roof. The trial court observed that later on, it appears the plaintiff opened his windows and ventilators towards the southern side in his wall, and since towards the southern side the Patta Shuda plot of the defendants is situated, the defendants erected an adjoining wall to the plaintiff’s wall and thereby closed the windows and ventilators. Thereafter, the plaintiff filed the present civil suit seeking mandatory injunction for removal of the defendants’ wall in order to allow opening of his windows and ventilators, as well as to have access to the gully measuring 3 feet.

5. The trial Court, in the impugned judgment, held that the plaintiff miserably failed to establish his right. The plaintiff did not produce any evidence to show that his windows and ventilators were open at the time of the Panch Faisla. Indisputably, before filing the present civil suit, the windows and ventilators of the plaintiff’s house had already been closed by the defendants by erecting a pakka wall on their own land. The defendants produced the Patta dated 08.08.1984 issued by Nagar Palika, marked as Exhibit D/4. Thus, after appreciation of oral and documentary evidence, the trial Court concluded that the plaintiff does not have any right of easement or right of way in the alleged gully. The trial court observed that the alleged gully was agreed to be left between the parties under the Panch Faisla, and since the Panch Faisla is an inadmissible document, it cannot be relied upon for proving the existence of the gully. The collateral purpose does not permit reading the Panch Faisla for the main object, for which it was executed. The trial Court clearly observed that, indisputably, the document of Panch Faisla does not depict the existence or opening of any windows, ventilators, etc., in the plaintiff’s house towards the defendants’ land. With such facts findings, the trial Court dismissed the plaintiff’s suit, vide judgment dated 28.05.2012.

6. The plaintiff preferred a first appeal against the judgment of the trial court. The first appellate Court reconsidered/ re- appreciated the entire evidence as a whole, and affirmed