The High Court cannot interfere with concurrent findings of fact unless they are perverse; a substantial question of law must be established for a second appeal under CPC.

ORDER :

1. The appellants have preferred the present Second Appeal under Section 100 of CPC being aggrieved by the Judgment and Decree dated 28.11.2022, passed in Civil Regular Appeal No. 26/2017, passed by Second District Judge, Sarangpur, Distt Rajgarh whereby appeal filed by the appellant has been dismissed by affirming the Judgment and Decree passed by the Learned Civil Judge Class-l, Sarangpur, Distt.- Rajgarh in Civil Original Suit No. 19A/2014, dated 28.11.2016.

2. Facts of the case in brief are that the respondents/defendant had filed suit for declaration of ownership, partition and permanent injunction on the basis of easement rights claiming 29 X 33 Sq. Ft. land in survey no.811, having 0.0009 Hectare, total land, situated in Tehsil Sarangpur, Distt- Rajgarh (Biora). In the plaint the respondent/plaintiff had stated that, they are representative of the Nath community and a 200 years old cemetery (graveyard) of their ancestors is situated in the Sarangpur and for their worship and function they have to use this path to reach at cemetery. But, the father of the defendants/appellants 1 & 2 has moved an application for NOC on the land for the construction in the year 2010 and on that the plaintiffs/respondents have raised their objection but the learned Tehsildar Court rejected the application without completion of the enquiry in influence of the defendants/appellants and a NOC also been obtained by the defendant/appellant. Hence, appellant filed a suit for declaration , partition and permanent injunction.

3 In the reply of the plaint, the appellants/defendants no. 1 & 2. denied the facts and stated that the plaintiffs/respondents are not representative of the Nath community and the Map present in the plaint is also not authenticated by any authorized person. It is also mentioned in the written statement that, the way showed in the Map, had never been in existence and earlier in 1994 also there was a dispute with respect to the right of way on the land and was denied at that time also and since then the appellants/defendants continuously denying the way from the land therefore the suit filed by the plaintiff/respondents is time barred. The learned trial court after perusing the pleadings framed as many as 3 issues and out of which 2 were declared proved and on that basis another issue of relief was decided in favour of the plaintiffs/respondents. In the judgment the learned trial court decreed the case and pronounced the judgment permanently restraining the appellants/defendants in the easement right of the plaintiff/respondents.

4. Being crestfallen by the judgment/decree, the defendants/appellants filed first appeal before Additional District Judge, Sarangpur, Distt.- Rajgarh (Biora). In the first appeal they stated that the learned trial court has not framed the issue on limitation and maintainability. It is also stated that the land (plot) in question was purchased by the appellants/defendants through registered sale deed. In reply to the first appeal the respondents/plaintiffs supported the judgment and decree passed by the learned trial court. The learned First appellate court dismissed the appeal and confirmed the judgment passed by the learned trial court.

5. Learned counsel for the appellants expostulated that the learned courts below have erred in not framing the issues on limitation and maintainability of the suit because the dispute has risen in the year 1992, the PW-1 has accepted in Para-13 of the cross examination that in the year 1992 on his complaint the wall of appellants/defendant no. 1 & 2 was broken and since then the appellants/defendant are denying the way of right on their legally purchased plot, but the suit is filed in the year 2010, and according to the section 25 of the Limitation Act there is no absolute and indefeasible right accrued in favour of the respondents/plaintiffs. The issue on limitation was not framed, instead of objection made in the written statement by the appellants/defendants. The