JUDGMENT/ORDER : 1. All three second appeals arise out of the Civil Suit for prohibitory and mandatory injunction filed by plaintiff-Govind Singh, being power of attorney holder of Smt. Krishna Kumari against the defendant-Gajaraj Singh and in that suit defendant- Gajraj Singh has filed counter claim seeking prohibitory injunction against plaintiff. 2. The dispute between the parties, is in relation to the gully of 8 feet width, situated between the houses of both parties. Both parties are neighbors. 3. The trial court, although recorded fact finding that the gully of 8 feet wide, exists between the houses of both parties yet dismissed the plaintiff's suit for prohibitory and mandatory injunction and simultaneously dismissed the counter claim of the defendant vide judgment and decree dated 21.01.2006. 4. Plaintiff, feeling aggrieved by the dismissal of his suit for prohibitory and mandatory injunction, challenged the judgment and decree dated 21.01.2006 by filing Civil First Appeal registered as C.F.A No.11/2006. The defendant challenged the judgment and decree dated 21.01.2006 to the extent of dismissing his counter claim and defendant's first appeal was registered as C.F.A. 19/2006. 5. Plaintiff's appeal No. C.F.A. 11/2006 has partly been allowed by the first appellate court being the Additional District Judge No.2, Bharatpur, vide judgment and decree dated 06.05.2015 and the judgment of trial court dated 21.01.2006 has been set aside to the extent of dismissing the plaintiff's suit for prohibitory injunction. The first appellate court has passed a decree for prohibitory injunction against the defendant to maintain the status of the gully in question, having 8 feet width, intact but dismissed the plaintiff's prayer for seeking mandatory injunction, to remove the construction of defendant, alleged to be raised in the gully. The first appellate court, in its judgment dated 06.05.2015, categorically observed that plaintiff has not clarified as to what nature of construction has been raised by the defendant in the gully in question, hence in absence of specific details and evidence, no decree for mandatory injunction was passed. 6. Against the judgment and decree dated 06.05.2015 passed in Civil First Appeal No. 11/2006 by the Additional District Judge No.2, Bharatpur, the plaintiff has preferred Civil Second Appeal No.369/15, to pursue his prayer of mandatory injunction whereas the defendant has preferred Civil Second Appeal No. 305/2015, feeling aggrieved by the grant of prohibitory injunction against the defendant to maintain the gully in question intact. 7. 7. The Civil First Appeal No.19/2006 preferred by the defendant against the dismissal of his counter claim, came to be dismissed by the separate judgment dated 06.05.2015 and there against defendant has preferred Civil Second Appeal No.311/15, to pursue his counter claim in relation to the gully in question. 8. Hence, all three second appeals have come up before this Court in the backdrop of aforesaid facts. 9. Heard learned counsel for both parties and perused the impugned judgments of courts below. 10 It appears from record that plaintiff-Govind Singh instituted a Civil Suit for prohibitory and mandatory injunction in the year 2002, alleging inter alia that his residential house is situated at Neem Darwaja, Bharatpur, which was purchased by Smt. Krishna Kumari through registered sale deed dated 03.05.1979 from one Smt. Prakash Devi. Plaintiff is the power of attorney holder of Smt. Krishna Devi, who has also been made party as plaintiff No.2. It has been averred in the plaint that towards western side of plaintiff's house, the residential house of defendant is situated after leaving 8 feet wide gully. Plaintiff averred that in this 8 feet wide gully, windows, ventilators etc. of plaintiff's house have their opening and this gully is of common use between both parties. Plaintiff averred that during winter breaks of the month of December, 2000, the defendant has raised some construction in the northern side of this gully and has closed the gully by putting a gate on two pillars. Hence, the present suit was instituted making a prayer that defendant be restrained by way of prohibitory injunction, not to close the existence of the gully in question and to maintain its existing position as well as plaintiff's prayer for issuance of decree for mandatory injunction, seeking removal of the illegal construction/encroachment alleged to be made by defendant in the north side of the gully in question. 11. Defendant-Gajraj Singh submitted written statement and while denying plaintiff's case for prohibitory and mandatory injunction, submitted his counter claim, contending therein that there is no gully of common use between the houses of both parties. In fact, the gully in question is included in the purchased portion of his house. Defendant- Gajraj Singh contended in his written statement that his mother namely, Smt. Sushila Devi purchased the plot through registered sale deed dated 02.09.1975, and since 1975, their construction is there. In fact, the gully in question is included in the purchased portion of his house. Defendant- Gajraj Singh contended in his written statement that his mother namely, Smt. Sushila Devi purchased the plot through registered sale deed dated 02.09.1975, and since 1975, their construction is there. Defendant categorically disputed and denied the existence of gully and right of plaintiff to have his windows, ventilators etc. opening towards this gully. The defendant made a counter claim to the effect that plaintiff be restrained not to open any windows, ventilators, nala, parnala and gate in the gully and may not obstruct in raising construction by the defendant adjoining to the plaintiff's southern wall. 12. The plaintiff submitted reply to the counter claim. 13. Learned trial court on the basis of rival pleadings of both parties settled issues and allowed both parties to produce evidence. 14. Learned trial court, on appreciation of documentary and oral evidence adduced by both parties, observed that the plaintiff and defendant have purchased their respective plots through registered sale deeds and one Sh. Samundar Singh is the common erstwhile owner of both properties. On appreciation of plaintiff's sale deed (Exhibit 2), the site map (Exhibit 3) and on comparison of the blue-print of site map (Exhibit 5) as well as the sale deed of adjoining plots (Exhibit 8), the trial court came to the conclusion that at site, the gully having 8 feet width, was left between plaintiff and defendant's plot. On appreciation of oral evidence, the trial court concluded that the defendant's house is constructed after leaving the gully of 8 feet width towards the western side of plaintiff's house. The trial court observed, on the basis of Exhibits 13A and 14A that defendant obtained sanction for construction of their house on 05.08.1974 and 12.11.1974. Hence it was concluded that prior to sale of the plot to plaintiff, the previous owner has got sanction for construction of plot on the portion, sold out to the defendant. The trial court observed that though the existence of gully stands proved by the evidence, however, there is no evidence to show that this gully is a common or public lane. The trial court observed that plaintiff has not produced sufficient evidence to show as to what nature of encroachment/construction has been raised by the defendant on the northern side of the map in question. 15. The trial court observed that plaintiff has not produced sufficient evidence to show as to what nature of encroachment/construction has been raised by the defendant on the northern side of the map in question. 15. As far as, counter claim made by the defendant is concerned, the trial court recorded fact finding that defendant has not produced his documents of title to show that the area of gully in question, is the part of his purchased plot. In absence of defendant's evidence to show his exclusive ownership and right over the area of gully, the counter claim of the defendant was dismissed. 16. Finally, the learned trial court after thorough examination of evidence of both parties and on evaluation of the measurement as well as four boundaries, concluded that gully of 8 feet width exists yet dismissed the plaintiff's suit for prohibitory and mandatory injunction and simultaneously, dismissed the counter claim of defendant vide judgment dated 21.01.2006. 17. On filling first appeals by both parties, as mentioned hereinabove, the first appellate court heard and decided both appeals together, however, passed two separate judgments dated 06.05.2015. Defendant's appeal against the dismissal of counter claim has been dismissed. The plaintiff's appeal against the dismissal of his suit for prohibitory and mandatory injunction has been partly allowed and the decree for prohibitory injunction has been passed in the following manner: ^^QyLo:i fo}ku v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; o fMØh fnukad 21-06-2006 vikLr fd;k tkrk gS rFkk vihykFkhZ@oknh dh vihy vkaf'kd :i ls Lohdkj dh tkdj Áfroknhx.k dks Áfrcaf/kr fd;k tkrk gS fd jkLrk tks fookfnr gS rFkk orZeku esa mldk tks Lo:i gS mldh fLFkfr nksuksa i{k ;Fkkor cuk;s j[ksaxsA 'ks"k vuqrks"k ds lEcU/k esa oknh dh vihy [k+kfjt dh tkrh gSA fMØh ipkZ fu;ekuqlkj cuk;k tkosA fu.kZ; Áfr ds lkFk fo}ku fopkj.k U;k;ky; dh i=koyh Ásf"kr gksA** 18. Learned counsel for appellant-defendants submits that two courts below have committed illegality in dismissing their counter claim whereas the title documents were produced before the first appellate court along with application filed under Order 41 Rule 27 CPC but the first appellate court dismissed their application and declined to take additional documents on record. Hence, it has been prayed that the prayer made in the counter claim deserves to be decreed and both impugned judgments be set aside and counter claim of defendant, too, be set aside. 19. Hence, it has been prayed that the prayer made in the counter claim deserves to be decreed and both impugned judgments be set aside and counter claim of defendant, too, be set aside. 19. Per contra, counsel for appellant-plaintiffs submits that both courts concurrently held that the gully of 8 feet wide exists between houses of both parties. In that situation, while passing the decree for prohibitory injunction, the first appellate court should have passed the decree for mandatory injunction as well, directing the defendant to remove the encroachment/construction made for the gully in question. Hence, the plaintiff's suit seeking prayer for mandatory injunction also deserves to be decreed and to this extent, the impugned judgment dated 06.05.2015 be modified and plaintiff's suit for mandatory injunction also be decreed. 20. On appreciation of the record, this Court finds that as far as the appeal preferred by defendants is concerned, firstly, there is no documentary evidence available on record to show their ownership over the area of gully in question. Secondly, both courts have concurrently found that there exists 8 feet wide gully between houses of both parties. As per the site report of the Commissioner, the use of the gully by the plaintiff, having its windows, ventilators, gate, nala and parnala etc. have been noticed. This gully is situated between houses of both parties and obviously, the same has been left for common use by both parties though not for the public at large as a public lane. The claim of defendant to use the gully in question exclusively and seeking prohibitory injunction against the plaintiff for opening his gate, windows, ventilator, nalla & parnala in this gully as well as seeking permission to raise construction adjoining to the plaintiff's western wall, has rightly been declined by both courts. The finding of fact recorded in relation to the existence of the gully by both courts is based on due appreciation of the evidence of both parties. Learned counsel for appellant-defendants could not point out any perversity or jurisdictional error or that the fact findings are based on misreading/non-reading of evidence or based on any inadmissible peace of evidence. Therefore, on the basis of such fact findings, no substantial question of law arises in the second appeal preferred by the defendant. 21. Learned counsel for appellant-defendants could not point out any perversity or jurisdictional error or that the fact findings are based on misreading/non-reading of evidence or based on any inadmissible peace of evidence. Therefore, on the basis of such fact findings, no substantial question of law arises in the second appeal preferred by the defendant. 21. As far as, the Civil Second Appeal preferred by the appellant- plaintiff, is concerned, neither in the pleadings of plaint nor in supportive documents, produced by plaintiff, the details of the encroachment/construction alleged to be raised by the defendant in northern side of the gully in question, is mentioned. Mere reference in the plaint that by putting two pillars, a gate has been affixed and the gully has been closed, have not been substantiated by any evidence. In counter to that, it has come on record that the construction of defendant is situated since 1975, it means prior to purchase of the plot by plaintiff. The plaintiff purchased the plot in question through sale deed dated 03.05.1979. There is no specific evidence from the side of plaintiff as to when and what type of construction was raised by the defendant in the gully in question. This Court during course of arguments, put a query from the counsel for appellant-plaintiff to show about the nature of encroachment/construction, however, no positive and satisfactory response to that query has been given. The first appellate court has observed in its judgment and decree dated 06.05.2015, while decreeing the plaintiff's suit for prohibitory injunction and declining the prayer for mandatory injunction to the effect that the nature of construction in gully is not clear on record, therefore, a decree for mandatory injunction cannot be passed in a mechanical and routine manner. However, the first appellate court, while concurring with the fact findings of the trial court that there exists a gully between the houses of both parties, has passed decree for prohibitory injunction in favour of plaintiff and against the defendant. 22. This Court finds that as per the material available on record, the first appellate court is well within its jurisdiction to pass the decree for prohibitory injunction against the defendant and declining the decree for mandatory injunction in favour of plaintiff. The position of gully, having 8 feet width has been kept intact with a right to use by both parties. 23. The position of gully, having 8 feet width has been kept intact with a right to use by both parties. 23. The substantial questions of law as proposed by appellant- plaintiff are essentially questions of fact which requires re- appreciation of evidence. None of the question of law, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held in case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case of Pakeerappa Rai v. Seethamma Hengsu & Ors., [ (2001) 9 SCC 521 ], Thulasidhara & Anr. v. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram v. Ameerchand, [ (1981) 2 SCC 414 ], Ishwar Das Jain v. Sohan Lal, [ (2000) 1 SCC 434 ] and State of Madhya Pradesh v. Sabal Singh & Ors., [ (2019) 10 SCC 595 ], D. Doddanarayan Reddy and Ors. v. C. Jayarama Reddy and ors. Reported in [ (2020) 4 SCC 659 ] 24. In the present cases, on appreciation of findings of fact, which suffer from no perversity, no question of law arises and in absence of any substantial question of law, these second appeals are not liable to be entertained and the same are hereby dismissed. 25. Any other pending applications, if any, also stands disposed of. 26. There is no order as to costs.