JUDGMENT 1. - This second appeal is against the judgment and the decree dated 235.1988 passed by the court of Addl. Civil Judge, Bikaner and against which regular First Appeal was also dismissed by the appellate court on 20.3.1998. 2. Brief facts of the case are that plaintiff respondent filed this suit for mandatory injunction and prohibitory injunction against the defendants-appellants in the court of Munsif, Bikaner on 2.1.1975. The said Civil Original Suit No. 23/83 was transferred to court Addl. Civil Judge, Bikaner and ultimately decreed on 23.5.1988. The case of the plaintiff as that the plaintiff purchased ⅓ portion of the land covered by the Patta No. 672 10 dated 2.11.1939 issued in the file No. 398 dated 19.8.1938 in the name of one Gyan Mal Sethiya. The plaintiff's house is situated over this purchased property. The plaintiff alleged that the defendants encroached upon the land situated in the western side of defendant's house which is marked in the map annexed to the plaint as ABCD. According to the plaintiff the said land is land o' the public way and obstructed the way of plaintiff's house. It is also submitted that presently plaintiff and before him, his predecessors were using this door and the windows, since last 40 years and they have a right to get air and light from this side. The plaintiff prayed that decree for mandatory in unction be granted directing defendant to remove the encroachment and be restrained from again encroaching the land in dispute and be further restrained from obstructing the way of the plaintiff. 3. The defendants no. 1 and 2 submitted separate written statements and denied the title of the plaintiff's property by denying factum of purchase of the plaintiffs property by the plaintiff and further denied the right of the plaintiff to keep the windows and doors towards the disputed land. The defendants also submitted that they are in occupation of the disputed plot since ago and the plot in dispute is their ownership plot. 4. The trial court framed the issues, (1) whether the defendants s encroached upon the land ABCD marked in the map which is land of the public way and by this the defendants obstructed the way of the plaintiff's house as well as air and light from the windows? 4. The trial court framed the issues, (1) whether the defendants s encroached upon the land ABCD marked in the map which is land of the public way and by this the defendants obstructed the way of the plaintiff's house as well as air and light from the windows? (2) whether the plaintiff and his predecessors were using the way for entering into their house and were getting the air and light in their house since last 40 years? and (3) whether to the defendants are having old possession over the land in dispute, if so, then what is the effect of it on the suit? 5. In the trial court, the plaintiff produced witness MI Punam Chand who was the person looking after the plot of the plaintiff and produced the Patta of land in dispute (Ex.1), map (Ex.2), copy of the notice (Ex 3), postal is receipt (Ex.4) and acknowledgement receipt (Ex.5). The defendant no. 2 Pyara Singh appeared as witness in support of defendant's case. Defendants also produce D.W.2 Jugal Kishore, an employee of U.I.T. Bikaner and also produced the Ex.A.1 Notice and Ex.A.2 map dated 20.5 1961. Defendant no. 1 did not produce any evidence. 6. The trial court, while deciding issue no. 1 held that the disputed land is part of the road. At the same time held that plaintiff could not prove that the defendants have encroached upon the land in dispute in the year 1974 and they have closed the doors and windows of the plaintiff's house. The trial court, thereafter held that whether plaintiff had windows and door in his house since last 40 years or not or plaintiff failed in proving recent encroachment by the defendants over the land in dispute, it has no effect on the suit of the plaintiff because of the reason that the defendants can not claim any right over the public way and the plaintiff has a right to approach through the road and also has a right to get natural flow of air and light from the road. Therefore, the plaintiff is entitled for decree for removal of encroachment of the defendants, Again while deciding issue no. Therefore, the plaintiff is entitled for decree for removal of encroachment of the defendants, Again while deciding issue no. 2, the trial court reached to the same conclusion that though the plaintiff failed to prove that windows and door were in existence since last 40 years, still the plaintiff is entitled for the relief of getting benefit of air and light as well as has a right to use the way. The trial court further held that since defendants have not taken plea of adverse possession over the land in. dispute, therefore, their possession cannot defeat the right of the plaintiff. 7. The defendants-appellants preferred first appeal which was decided by the learned Addl. District Judge No. 1, Bikaner. The first appellate court again re-appreciated the evidence in detail and held that there is clear mention in the Patta Ex.1-A and in the sale-deed executed in favour of the plaintiff by the vendor that there are three doors in the north of the plaintiff's house and thereafter, there is open Government chowk. These facts are mentioned in the document dated 15.10.1931 and are relied upon the first appellate court. The appellate court held that not only this but even in the copy of the map Ex.A-2 produced by the appellants-defendants themselves also open Government chowk has been shown in the north of the plaintiff's house. The appellate court also found defendants (particularly defendant no. 1 Baryam Singh), earlier tried to purchase this very land from the U.I.T. so Bikaner which was challenged by the one neighbour of appellants and ultimately, the Rajasthan High Court, by its judgment dated 13.1.1992 upheld decision of the courts below, restrained the defendant no. 1 Baryam Singh from purchasing the land falling in front of the house of the plaintiff of that case. It is relevant to mention here that in that earlier suit also defendant Baryam Singh took the plea that he has deposited Rs. 1365/- with U.I.T., Bikaner and has old possession over the land. (The appellant who is son of Baryam Singh and is defendant with his father in this suit, after the death of his father and after about 20 years and that too in second appeal wants to raise defence again on the basis of said same deposit of Rs. 1365/- with U.I.T., Bikaner and has old possession over the land. (The appellant who is son of Baryam Singh and is defendant with his father in this suit, after the death of his father and after about 20 years and that too in second appeal wants to raise defence again on the basis of said same deposit of Rs. 1365/- with U.I.T., Bikaner, to protect his possession.) The first appellate court, after considering entire facts in detail and after considering the earlier decision against the defendants held that the land in dispute is land of the public to chowk and the defendants have encroached upon the open Government land. The plaintiff's door and windows were in existence since long time and plaintiff has right to get air and light from these windows and door. The first appellate court, thereafter, dismissed the appeal of the appellants by judgment and decree dated 20.3.1998. 8. After the decision of the first appellate court, Bariyam Singh-defendant no. 1 and father of the appellant died, and therefore, defendant no. 2 preferred this appeal. 9. Before proceeding with the appeal, it may be noticed that there is concurrent finding of fact by both the courts below that the land in dispute for which injunction has been sought by the plaintiff is land of the part of the public way after appreciation of not only oral but documentary evidence and therefore, cannot be challenged in second appeal unless it is perverse or based on no evidence or the court below have committed patent error of law or there exists any well recognised reason in law which permits this court to interfere in finding of facts recorded by the final court of facts. After going through the entire evidence of the both the parties, this Court is also of the view that the finding recorded by the courts below cannot be said to be either perverse or finding recorded is not based on evidence. It will be relevant to mention here that, from the beginning, when the defendants, who are father and son tried to purchase this property from the Urban Improvement Trust, Bikaner, the action was challenged by their neighbour Santlal by filing suit for prohibitory injunction and that suit of Santlal was decreed up to the appellate court and upheld by this Court by detail judgment dated 13.1.190. Since, the relief claimed by Santlal was limited to the extent of prohibiting present defendant Bariyam Singh, father of the appellant, therefore, the court granted decree only for the land for the land up to the width of Santlal's house out of the property sought to be purchased by the defendant Bariyam Singh. The decree was upheld by this court, after holding that the land in dispute of that case (part of which is subject matter in present suit) is land of the public chowk and way and Santlal has right to use the land for his way. Though there was decree for injunction against Bariyam Singh and Urban Improvement Trust itself since 1973, despite the defence of the defendant Bariyam Singh taken in that earlier suit No. 65/73 that he has deposited Rs. 1365/- with defendant no. 2 U.I.T., Bikaner, the injunction decree was passed by the two courts and upheld ultimately by the High Court. It is further relevant to mention here that despite having taken such a defence in the Civil Original Suit No. 65/73 Santlal v. Bariyam Singh about the alleged their right to purchase the property from ULT., Bikaner the defendants. present appellant and his father did not choose to set up any right flowing from their deposit of Rs. 13651- with U.I.T. to purchase the property in dispute involved in this suit in the written statement and merely confined their plea that they are in occupation of the land in dispute and they put their fencing and one door enclosing the disputed land. Since there was no plea of the defendants about their any title over the property or their right to purchase the property or any right flowing from the deposit of Rs. 1365/- with the U.I.T., Bikaner, therefore, no issue was framed by the trial court and only issues framed by the trial court are whether the defendants have encroached upon the land of the road marked as ABCD and obstructed the plaintiff's way to the house and obstructed the air and light coming from the doors and windows in the property of the plaintiff, and whether the plaintiff before him his predecessor was enjoying above benefit since last 40 years and one more issue on the plea of defendants, whether defendants' possession is old one. Now the defendant, after about 20 years of litigation, that too in second appeal, wants to take pleas on the basis of his alleged right, said to have been accrued due to deposit of above amount and wants to take plea of adverse possession on the basis of alleged old possession. 10. In view of the above finding of fact as well as finding of fact recorded by the first appellate court based on documentary evidence, Patta Ex.1 and supported even by the map Ex.A-2, the finding of the appellate court that the doors and windows of the house of the plaintiff were opening towards Government chowk and from this very land, the plaintiff was getting the air and light and this land of the chowk is also being used for way for the house of the plaintiff and in view of the earlier decision of this Court against the defendants in S.B. Civil Regular Second Appeal No. 566/1974 Bariyam Singh v. Sant Lal decided on 13.1.1992 , I do not find any substantial question arising in this appeal. 11. It is relevant to mention here that the defendant Pyare Singh submitted two applications before this Court. One is under Order 6 Rule 17 C.PC., seeking amendment of the written statement which was filed by him before the trial court about more than 18 years ago, on 25.8.1986 and another application is under Order 41 Rule 27 C.P.C. seeking permission to produce evidence in second appeal in a case which was filed about 20 years ago and in which issues were framed in the trial court about more than 16 years ago on 25.9.1986. Yet one more application, under Section 100(5) C.P.C. is there, submitted by the appellant-defendant, raising few more legal grounds. Yet one more application, under Section 100(5) C.P.C. is there, submitted by the appellant-defendant, raising few more legal grounds. Though these applications deserves to be dismissed only because of the reason that the applications have been filed just to have a retrial of entire controversy after consuming 20 years of the three courts time and after loosing the battle as back as in the year 1992 when this Court dismissed the S.B. Civil Second Appeal No. 566/1974 of the defendant Bariyam Singh by judgment dated 13.1.1992 involving the same controversy which is now sought to be raised by the defendant-appellant by seeking amendment in the written statement and by filing the documents referred in the application under Order 41 Rule 27 C.P.C. Applications are not only deserves to be dismissed on the ground of delay but further liable for dismissal as no ground much to any sufficient has been shown by the appellant for such inordinate delay in filling applications. The grounds which are sought to be raised by filing application under Section 100(5), C.P.C. also are not arising from the defence taken by the defendant- appellant as none of the ground raised in original appeal or sought to be raised by application under Section 100(5) C.P.C. arises in view of the fact that nature of the land in dispute has already been stood conclusively determined by the concurrent findings of the two courts below and there is no illegality in the judgment of the two courts below and which finds support from the judgment of this Court against the defendant Bariyam Singh and binding upon even the present appellant who is son of Bariyam Singh. 12. The learned counsel for the appellant relied upon several judgments of the Hon'ble Supreme Court and other High Court including of this court which are, of Gulab Chand (dead) by LRs v. Babulal (dead) by LRs. and others, reported in 1998 (3) GCC (SC) ; Sakuntalakumari and ors. v. Laxmi Amma Janki Amma, reported in 2000 (5) Supreme 538 ; Sir Chunnilal Mehta and sons Limited v. Century Spinning and Manufacturing Co. Ltd., reported in (1962) 3 SCR 549 ; Rama v. Megha and ors., 2002 (4) CCC 386 (Raj.) 386 ; Bhagirath and another v. State of Raj. v. Laxmi Amma Janki Amma, reported in 2000 (5) Supreme 538 ; Sir Chunnilal Mehta and sons Limited v. Century Spinning and Manufacturing Co. Ltd., reported in (1962) 3 SCR 549 ; Rama v. Megha and ors., 2002 (4) CCC 386 (Raj.) 386 ; Bhagirath and another v. State of Raj. & ors., reported in 2003 Western Law Cases (Raj.) UC 130 Madras High Court in the case of Jabamani v. K. Mani Chettiar, reported in 2002 (3) CCC 266 (Madras) 266 . After considering all the judgments which I feel not necessary to refer in detail because of the reason that the law propounded in the above judgments are not in dispute. There is no dispute that amendment can be permitted (before amendment of the Code of Civil Procedure) even at second appeal stage, there is no dispute that normally delay may not come in way in seeking amendment in the pleading, there is no dispute with respect to the scope within which the High Court can interfere with the finding of fact recorded by the trial court and even in given case concurrent finding of facts can be reversed by the High Court and construction of a document is a substantial question of law and the parties cannot travel beyond their pleadings, the parties are required to set up the case in their pleadings, in absence of pleadings no evidence can be looked into. what are the requirements for seeking relief on the basis of the claim of easementary right. But all the judgments relied upon by the learned counsel for the appellant are having no application to the facts of this case and the pleas sought to be raised are not only without there being any factual foundation and without there being any defence and the law propounded by these judgments cannot be applied to the facts of this case. It may be again noticed that amendment of written statement is concerned that can be permitted in the facts of a case even in second appeal but the scope of the permission to amend the written statement has changed after coming into force in the new C.P.C. in the year 2002. It may be again noticed that amendment of written statement is concerned that can be permitted in the facts of a case even in second appeal but the scope of the permission to amend the written statement has changed after coming into force in the new C.P.C. in the year 2002. Apart from above, in this case, even the defendant-appellant could not make out any case either for permission to amendment of the written statement or for grant of permission to produce additional evidence at second appeal stage that too after delay of about more than 20 years and on applications which were even not filed along with appeal. The reasons mentioned in the applications, in fact, which are in fact no reasons, are also not disclosing any sufficient cause for not moving such applications earlier before either trial court or even before first Appellate Court. The reasons mentioned in the applications do not fall within the parameters, requiring reasons to permit amendment of the written statement and permits any party to produce evidence at second appeal stage, which will result into permitting defendant to raise-the pleas which were not only in his personal knowledge m ire than 20 years ago but were subject matter in a litigation in which the defendant Bariyam Singh himself was a party and which was decided by this Court in the year 1992 and the pleas were rejected by the High Court and the appellant wants to take help of those very pleas and wants to plead facts so about his old possession referring to the facts of the year 1936 and of the year 1961 and of the year 1968. In this case, the defendant's only plea since about 20 years was that he is in possession of the property in dispute and none else. This is settled law that no one can claim any personal right or title in the property of the public chowk and the public road except as of user like public person. Admittedly, no title lies in favour of the defendant nor defendant ever claim any title over the land in question. Even local bodies have no right to sell or give title of the property of the land of the way to any person. Admittedly, no title lies in favour of the defendant nor defendant ever claim any title over the land in question. Even local bodies have no right to sell or give title of the property of the land of the way to any person. The claim of the plaintiff in the suit was clear and unambiguous that disputed land is the land of a public chowk and portion of the said chowk is being used by the plaintiff as a way to reach to his house. The plaintiff has absolute right to use the benefit arising out of the situation of his property near the public chowk and the way and the right of the plaintiff is found established by the courts below as a matter of fact. Therefore, I do not find any reason to permit the defendant-appellant to amend the written statement to raise new factual disputes and there is no reason to permit defendant-appellant to produce the documents which are not relevant for just decision of the any issue involved in the suit. I do not find any force in any of the arguments raised by the learned counsel for the appellant that the land in dispute is not public chowk and the right of way from the land in dispute claimed by the plaintiff is again required to be examined in the light of the definition given in the Rajasthan Municipalities Act after concurrent findings of the courts below. There is no force in the submission of the learned counsel for the appellant that the plaintiff- respondent failed to prove his right of easement as per the provisions of Easement Act or the plaintiff's suit is not maintainable which were never the defence of the appellant-defendant in his pleadings. 13. In view of the above reasons, I do not find any force in the appeal of the appellant and the same is hereby dismissed. The leave to appeal sought by the learned counsel for the appellant is rejected. No order as to costs.Appeal Dismissed. *******