JUDGMENT

Heard on admission.

1/ The appellant/defendant has filed the present second appeal under section 100 of Code of Civil Procedure, 1908 (in short CPC) against the impugned judgment and decree dated 16.8.2023 passed by Principal District Judge Barwani in civil appeal no. RCA/1/2023 whereby the judgment and decree dated 28.11.2022 passed by Civil Judge Junior Division Anjad District Barwani in civil suit No. RCS-A/14/2017 filed by plaintiff/respondent no.1 for declaration of title and permanent injunction, decreed in favour of plaintiff, has been affirmed.

2 Brief facts of the case are that respondent no.1/plaintiff had filed a civil suit for declaration of title and permanent injunction thereby declaring the order dated 17.8.2017 passed by SDO Rajpur null and void and by stating that plaintiff is the owner of land bearing khasra No. 23,50, 113/2, 113/3 and 115/4 situated at village Baghadi. The appellant/defendant no.1 filed an application before Tehsildar Thikari for providing new passage through plaintiff's land to reach his agricultural land bearing survey No. 117. After hearing the learned counsel for both the parties, Tehsildar Thikari has passed order dated 19.5.2017, then respondent/plaintiff preferred an appeal same has been rejected by SDO Rajpur vide order dated 17.8.2017. The defendant never used plaintiff's land as customary way, alternate way is available for him, therefore, the defendant be restrained from creating a new passage on the suit land of plaintiff. In reply the appellant/defendant denied all plaint averments by stating that since long period he is enjoying the right of way over the suit property as customary right and plaintiff is trying to obstruct in the customary way.

4 The learned trial court on the basis of aforesaid pleading framed issues and after hearing both the parties and recording evidence has partly decreed the suit filed by plaintiff vide impugned judgment and decree dated 28.11.2022. Being aggrieved by the impugned judgment and decree, the defendant has preferred an appeal, but after re- appreciating the entire evidence, the first appellate court has affirmed the findings so recorded by the trial court. Hence the appellant/defendant has preferred this second appeal.

5 Learned counsel for appellant contended that the impugned judgment and decree passed by the court below is against law and fact. Both the courts below have ignored the oral as well as documentary evidence adduced by the appellant. Both the courts below have ignored the pleadings made by the appellant, therefore, the finding of both the courts blow is perverse. Hence he prays that the appeal be admitted on the proposed substantial questions of law formulated by the appellant.

6 Heard learned counsel for appellant and perused the record with due care.

7 From perusal of the impugned judgment and decree passed by the courts below it appears that appellant/defendant Rukhdiya (PW-1) himself deposed in his statement that defendant no.1 has straight and convenient road to reach his agricultural land holding survey No. 117 with bullock cart and tractor from village Dangari through natural Nala. The aforesaid way passes through adjacent land of agriculturists Anar Singh and Sada Bhil. The aforesaid way has been used by agriculturist for a long as a custom. There is no right of way to defendant from middle of his agricultural holding. Defendant no.1 Mohan himself examined as DW-1, Gajanand examined as DW-2, also supported the statement of defendant Mohan.

8 Although defendant no. 1 has placed reliance upon Commissioner's report dated 21.11.2018 but as an unexhibited document, he did not examine any witness to prove this commissioner's report therefore, the unexhibited report of commissioner is not admissible in evidence.

9 On the basis of evidence available on record both the courts below have rightly given finding that plaintiff has successfully established that appellant/defendant has aforesaid alternate way to reach his land but th