JUDGMENT 1. - This is a defendant's second appeal arising out of a suit for declaring that the plaintiff-respondent is the owner of the "Pushta" (a sort of wall so as to prevent rain water etc. from damaging the building) shown as XY in the plan Ex. 4 submitted with the plaint. It was also prayed by the plaintiff that the defendants be directed to remove the encroachment made by them on a part of the 'Pushta' to the extent of 11/2' on its western extremity by including it in their latrine. This portion has been marked as 'Z'. The defendants' case is that they are owners of the 'Pushta'. 2. After recording the evidence produced by the parties the learned Munsiff, Ajmer City (West) decreed the plaintiff's suit in part by declaring that the plaintiff is the owner of the 'Pushta' in question but he refused to issue a mandatory injunction for demolition of a part of the latrine so as to restore 11/2' of the 'Pushta' to the plaintiff, but awarded Rs. 20/- as damages. A perpetual injunction was also issued against the defendants from interfering with the plaintiff's possession over the 'Pushta' in any way. Aggrieved by the judgement and decree of the trial court the defendants filed appeal. The plaintiff also filed cross-objection but both were dismissed and the judgement and decree by the trial court upheld. Now the defendant alone has filed appeal and the plaintiff respondent has not appeared in this court inspite of service of notice. Consequently, I have heard the appeal exparte. 3. The only point for decision in this appeal is whether the 'Pushta' belongs to the plaintiff? Learned counsel for the appellant has urged that mere failure on the part of the defendants to prove their ownership to the 'Pushta' will not entitle the plaintiff to get a decree in his favour and the plaintiff can succeed on the strength of his own case and cannot succeed on the basis of weakness of the defence. This position is correct. This position is correct. However, the courts below on the basis of the evidence of P.W. 1, Umraomal, who had donated the building in question to which the 'Pushta' in dispute is attached, P.W. 2 Sobha Chand, who is a frequent visitor to the plaintiff's building, P.W. 5 Ganeshmal who is aged 60 years and who has been residing in the immediate neighbourhood of the plaintiff's building have come to the conclusion that the 'Pushta' is proved to belong to the plaintiff. The defendants also examined two witnesses in support of their case. D.W. 1 Riyaz Hussain has stated that a part of the 'Pushta' has come under the latrine belonging to the defendants. He has admitted that the building adjacent to the 'Pushta' belongs to the plaintiff. When further cross examined on the point, he has deposed that he has not got in his possession any document pertaining to the defendant's ownership to the 'Pushta', but that is his guess that the 'Pushta' belongs to the defendants. D.W. 2 Mohibullah stated that he is a tenant of the defendants for the last nine years, and while reconstructing the latrine in the premises rented out to him, it is just possible that a part of the 'Pushta' may have come under it. He does not say a word that the 'Pushta' belongs to the defendants. It further appears that there is a passage 4'6" wide between this 'Pushta' and the building of the defendants. In addition to the oral evidence lower appellate court has further found that there is no mention of the 'Pushta' in the documents pertaining to the defendants' property placed on the record. Thus on the evidence produced by the parties the courts below came to the conclusion that the plaintiff had proved by preponderance of evidence that the 'Pushta' belonged to the plaintiff, and not the defendants. A part of the 'Pushta' encroached upon the defendants has not been ordered to be removed but an insignificant amount of Rs. 20/- has been awarded as damages. The finding arrived at by the lower courts regarding the ownership of the 'Pushta' is one of the fact and is not vitiated by any error of law. I have, therefore, no alternative but to dismiss this appeal and accordingly do so, but without any order as to costs. 4. 20/- has been awarded as damages. The finding arrived at by the lower courts regarding the ownership of the 'Pushta' is one of the fact and is not vitiated by any error of law. I have, therefore, no alternative but to dismiss this appeal and accordingly do so, but without any order as to costs. 4. Learned counsel for the appellant prays for leaves to appeal to Division Bench. Leave is refused. *******