Jagdish Kumar S/o Late Shri Sitaram Nai v. Bheem Singh S/o Bhup Singh Meena
2018-02-06
ALOK SHARMA
body2018
DigiLaw.ai
ORDER : 1. A challenge has been laid by the appellants-plaintiffs (hereinafter the Plaintiffs) to the judgment and decree dated 22.2.2017 passed by the Additional District Judge No. 2 Behror, District Alwar in Appeal No. 34/2013 (34/2011) dismissing the plaintiffs' appeal and affirming the judgment and decree dated 5.3.2011 passed by the Civil Judge (Senior Division) Behror, District Alwar in Civil Suit No. 10/1998 dismissing the suit for declaration and injunction. 2. The plaintiffs filed a suit for declaration and injunction claiming that they were owning a piece of land in village Shahjahanpur, Tehsil Behror District Alwar measuring East-west 39'2”, South 27'2” and North 30' disclosing its boundaries as in East-house of Bhoop Singh Meena, in West-plaintiff's property, their exit and chowk, in the North-house of Lalaram Nai and in the South property of Lalaram Nai. It was alleged that on 8.1.1992 the defendants tried to construct a drain, balcony and ventilator opening towards the plaintiff's property and hence the suit for declaration and injunction. 3. On service of notice on the plaint, the defendants filed written statement and submitted that a strip of land measuring 4'2” x 4'6” separated the properties of the plaintiffs and defendants, the description of them being adjoining was incorrect and the drainage and ventilators of the defendants' house towards the plaintiffs already was in existence for the past several years. 4. On the pleadings of the parties, the trial court framed two issues. One, as to whether the strip of land shown in the map annexed to the plaint and marked as ABCD in red colour was in the ownership and possession of the plaintiffs, and the other, as to whether the defendants were trying to construct drainage, ventilators, windows and balcony towards the plaintiff's property entitling them to an injunction on that count. 5. Considering the evidence laid by the contesting parties, the trial court found that the plaintiffs had failed to prove their title over the land in dispute or controvert the defence of the defendants that there was a strip of land between the properties of the plaintiffs and defendants separating the two. It also held that the plaintiffs failed to prove that the defendants' drainage, windows, ventilators and balcony were recent construction. It found that in fact the plaintiffs' witnesses admitted that alleged drainage and ventilators were in existence since 1984-85, while the suit was filed in the year 1992.
It also held that the plaintiffs failed to prove that the defendants' drainage, windows, ventilators and balcony were recent construction. It found that in fact the plaintiffs' witnesses admitted that alleged drainage and ventilators were in existence since 1984-85, while the suit was filed in the year 1992. The trial court decided both the issues against the plaintiffs on the evidence on record and dismissed their suit vide judgment and decree dated 5.3.2011. The plaintiffs' regular first appeal under Section 96 CPC there against has failed and the trial court's judgment affirmed in appeal vide judgment and decree dated 22.2.2017. Hence this second appeal. Heard counsel for the plaintiffs, the appellants herein. 6. A perusal of the impugned judgments and decree passed by the courts below indicates that the plaintiffs miserably failed to prove their title of any kind over the land in dispute. They failed to prove that their property adjoined that of the defendants or that the alleged construction by the defendants towards their property were recent in contravention of any law vis-a-vis they had a legal right. The trial court has on the contrary from the appreciation of evidence before it found that a strip of land separated the plaintiff's property from the defendants and construction challenged were completed several years prior to the filing of the suit. 7. The courts below concurrently having reached to a finding of fact on appreciation of evidence on the two issues struck in the plaintiffs' suit and the said findings suffering neither perversity nor being vitiated by any illegality, no substantial question of law arises in this second appeal. 8. It is therefore dismissed.