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2013 DIGILAW 103 (RAJ)

Bhanwar Lal v. Prakash Chand Dhabaria

2013-01-15

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The instant second appeal has been filed under Section 100 of CPC challenging the judgment and decree dated 6.9.11 passed by the Addl. District Judge NO. 2, Ajmer (hereinafter referred to as 'the appellate court') in Civil Appeal No. 127/07 (208/07) as well as the judgment and decree dated 29.9.07 passed by the Addl. Civil Judge (Jr. Div.) No. 1, Ajmer in Civil Suit NO. 294/02 (289/01). 2. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the suit seeking permanent as well as mandatory injunction against the appellants-defendants in respect of the suit property. It was alleged interalia in the plaint that the father of the plaintiffs had purchased the suit property by the registered sale-deed on 4.4.59 and since then the plaintiffs were residing in the said property. It was further alleged that the appellants-plaintiffs were residing towards northern side of their property and that the defendants had opened three ventilators towards northern side of Nohra towards the property of the plaintiffs, and in one of the said ventilators they had also put a window. The said suit was resisted by the appellants-defendants denying the allegations made in the plaint and further contended interalia that the ventilators in questions were about 80-100 years old and that the defendants were enjoying the easementry right of light and air through the said ventilators since the construction of the property by the erstwhile owners. The trial court vide the judgment and decree dated 29.9.07 decreed the suit directing the defendants to close down the ventilators in question and further restraining them from opening up any new windows or the ventilators on the disputed wall. Being aggrieved by the said judgment and decree the appellants had preferred the appeal before the appellate court, which also came to be dismissed vide the judgment and decree dated 6.9.11. 3. It has been submitted by the learned counsel Mr. Neeraj K. Tiwari for the appellants that the courts below had failed to appreciate the evidence on record and more particularly the report of the Commissioner. According to him the courts below had also failed to appreciate the evidence of the defendants, who had stated interalia that the ventilators were in existence since last more than 80-100 years. 4. However, the learned counsel Mr. According to him the courts below had also failed to appreciate the evidence of the defendants, who had stated interalia that the ventilators were in existence since last more than 80-100 years. 4. However, the learned counsel Mr. Alok Chaturvedi for the respondents-plaintiffs submitted that there being concurrent findings of the facts recorded by both the courts below this court may not interfere with the same. He also submitted that the appellants-defendants had also failed to prove any right much less easementry right to get light and air through the ventilators in question and both the courts have rightly granted the injunction as prayed for by the respondents-plaintiffs. 5. Having regard to the submissions made by the learned counsels for the parties and to the impugned judgments and decrees passed by the courts below, it transpires that the suit of the respondents-plaintiffs has been decreed by the trial court and the same has been confirmed by the appellate court, as the appellants-defendants had failed to prove that the ventilators in question were existing since last more than 80-100 years, as contended by them. It also appears that the appellants had failed to produce the relevant map referred to in the sale-deed, through which the defendants had purchased their property and hence both the courts below had drawn an adverse inference against the appellants-defendants and had held that the defendants had failed to prove the existence of the ventilators and their easementry right to get the light and air through the said ventilators since the last more than 80-100 years. There being concurrent findings of facts recorded by the courts below as regards the existence of ventilators, this court is not inclined to interfere with the said findings. The learned counsel Mr. Neeraj K. Tiwari for the appellants has also failed to point out any question of law much less substantial question of law involved in the second appeal. 6. Hence the second appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.Appeal dismissed. *******