JUDGMENT : 1. Instant second appeal under Section 100 CPC arises out of a civil suit filed for seeking prohibitory and mandatory injunction, way back on 09.10.1963, in relation to a portion of roof, situated in the property, commonly known as “Purohit Ji Ka Katla”, Chowkri Vishveshwar Ji, Johri Bazar, Jaipur. The suit was instituted by plaintiff-Prakash Chandra Kasliwal, against two persons namely Purohit Swaroop Narain and Murlidhar who were made parties as defendant Nos.1 and 2. Plaintiff claimed that on the portion of roof, purchased by him, defendant No.2 has constructed a wall of 37 ft. long from north to south and up to 7 ft. height thereby has pressed an area of his roof, towards northern side of wall, mark ‘A’, 1.5 ft. and towards southern side of wall mark ‘B’ 8 inch. The plaintiff prayed for, to obtain possession of such area of his roof, which has been encroached upon by defendant No.2, while raising construction of wall in question and thus, a decree for prohibitory injunction not to raise any construction on his roof and for mandatory injunction seeking demolition of wall in question has prayed for. Defendant No.1 supported the plaintiff’s suit and defendant No.2 contested the same. The suit bearing No.16/77(501/1963) was partially decreed vide judgment dated 30.09.1983 by the Court of Additional Civil Judge No.2 Jaipur City, Jaipur and thereby defendants were restrained by prohibitory injunction not to raise any construction over the roof of plaintiff and not to obstruct the plaintiff from use and occupation of the roof in question but the suit for seeking mandatory injunction, to demolish the wall in question was dismissed being barred by limitation as well as the area of roof come under the wall is very small and negligible. The trial court also observed in the operative portion of judgment that right of defendant No.2 for coming and going to temple through staircase and roof in question will remain intact. 2. During trial of suit, plaintiff-Prakash Chand Kasliwal sold the roof in question to one Raj Kumar Sethi through sale deed dated 13.02.1968, therefore, purchaser-Raj Kumar Sethi was also allowed to be impleaded as plaintiff No.1/1 with plaintiff No.1-Prakash Chandra Kasliwal. 3. 2. During trial of suit, plaintiff-Prakash Chand Kasliwal sold the roof in question to one Raj Kumar Sethi through sale deed dated 13.02.1968, therefore, purchaser-Raj Kumar Sethi was also allowed to be impleaded as plaintiff No.1/1 with plaintiff No.1-Prakash Chandra Kasliwal. 3. Plaintiff No.1/1-Raj Kumar Sethi, the subsequent purchaser, who was added as party, alone preferred first appeal No.1/1984, challenging the judgment dated 30.09.1983 to the extent of dismissing the suit for mandatory injunction and to the extent of the order passed by trial court to keep intact, the right of way of defendant No.2, for coming and going to the temple premises through the roof in question. The defendant No.1, was not aggrieved by the judgment and decree of trial court dated 30.09.1983, he did not preferred any appeal thereagainst. Defendant No.2-Murlidhar preferred his separate first appeal No.2/1984 challenging the judgment and decree dated 30.09.1983, to the extent of passing a decree for prohibitory injunction in respect of the roof in question in favour of plaintiff. 4. Both the first appeals No.1/1984, preferred by subsequent purchaser and plaintiff No.1/1 and first appeal No.2/1984, preferred by defendant No.2 were heard together and decided vide common judgment dated 28.02.1987 by the Court of Additional District Judge No.2, Jaipur City, Jaipur and thereby appeal No.2/1984 of defendant No.2 was dismissed affirming the decree of prohibitory injunction passed in favour of plaintiff but the appeal No.1/1984 preferred by plaintiff was allowed and the suit for mandatory injunction was also decreed by issuing a direction against defendant No.2 to demolish the wall in question just for the purpose of obtaining the possession of roof area 1.5 ft. towards northern side and 8 inch. towards southern side, which has come beneath the wall in question and simultaneously the observation in the judgment dated 30.09.1983, keeping the right of way of defendant No.2 intact, through roof in question, was also deleted. towards northern side and 8 inch. towards southern side, which has come beneath the wall in question and simultaneously the observation in the judgment dated 30.09.1983, keeping the right of way of defendant No.2 intact, through roof in question, was also deleted. Thus, defendant No.2-Murlidhar has challenged the judgment and decree dated 28.02.1987 by way of filing the present second appeal, in respect of three grievances (i) decree of prohibitory injunction concurrently passed by both courts in favour of plaintiff is not sustainable; (ii) first appellate court committed illegality and perversity in decreeing the suit for mandatory injunction after upsetting findings of the trial court and direction for demolition of wall of defendant No.2 is not sustaniable and be quashed and lastly; (iii) when right of way of defendant No.2, for coming and going to his gaddi and temple premises through roof in question of plaintiff is an admitted and undisputed right, the same has unwarrantly been ordered to be deleted by the first appellate court. 5. The relevant facts of the case, in nutshell, may be recapitulated that plaintiff claimed to purchase the roof in question of the building known as Katla Purohit Ji through registered sale-deed dated 26.12.1957 from one Badhi Chand Ji Gangwaat who had purchased the property from defendant No.1-Purohit Swaroop Narain. It was specifically averred in para No.2 of plaint that plaintiff has purchased the roof under sale deed dated 26.12.1957, after leaving an area of 21 ft. 3 inch (east to west) and 55ft. 3 inch (north to south) and it was also clarified by plaintiff in para No.2 of plaint itself that defendant No.1 has a right of way for coming and going to gaddi and temple premises through the roof purchased by plaintiff and except this right of way, he has no right to raise any construction on the roof of plaintiff. Plaintiff pleaded that, in north-east corner of the roof one gaddi is constructed and towards southern side of gaddi, one kitchen, one temple and one room are also constructed. The portion of roof, in front of said premises, covered by tin sheded belongs to defendant No.1 and its measurement is 21ft. and 3 inch towards east to west and 25ft. and 3 inch. towards north south, and defendant No.1 is the owner of gaddi and temple premises who has appointed defendant No.2 for performing seva puja in the temple. The portion of roof, in front of said premises, covered by tin sheded belongs to defendant No.1 and its measurement is 21ft. and 3 inch towards east to west and 25ft. and 3 inch. towards north south, and defendant No.1 is the owner of gaddi and temple premises who has appointed defendant No.2 for performing seva puja in the temple. Thus, indeed defendant No.2 was admitted in actual and physical possession of the temple premises and gaddi. Plaintiff further pleaded that defendant No.2, on 26.09.1963 started to raise construction of wall, by putting two pillars and he has erected a wall in the length of 37 ft. and in height of 7 ft. The plaintiff pleaded that in raising construction of wall, the defendant No.2 has protruded the wall, on the roof of plaintiff and under the wall in question, 1.5 ft. area of his roof towards northern side of wall and 8 inch area towards southern side of wall has been pressed. This wall in question is marked “a” to “b” in the map, appended with the plaint (Ex.2). Plaintiff alleged his absolute ownership and possession over the roof in question and prayed for prohibitory injunction against defendant Nos.1 and 2 for not raising any construction on the roof purchased by him and further has prayed for a decree of mandatory injunction, seeking demolition of the wall in question, just to obtain the possession of the area of his roof, which is towards northern side of wall is 1.5 ft. and towards southern side of wall is 8 inch only. According to plaintiff this area of his roof has been encroached upon by the defendant No.2 by erecting a slanting wall of 37 ft. long. Thus, it may be pointed out here that as far as decree for mandatory injunction and possession is concerned, the same is only in respect of an area of 1.5 ft. towards northern side of wall and 8 inch towards southern side of wall, alleged to be come under the wall in question, constructed by defendant No.2. The measurement of such area has been given out in para No.5 of the plaint. 6. towards northern side of wall and 8 inch towards southern side of wall, alleged to be come under the wall in question, constructed by defendant No.2. The measurement of such area has been given out in para No.5 of the plaint. 6. In order to figure out the clinching point of dispute between the parties, it is better to extract here para No.5 of the plaint:- 5- ;g fd mDr dfFkr nhokj dh rkehj esa çfroknh uaŒ 2 us mrj dh vkSj 1-5 QhV Nr o nf{k.k dh vksj 8 bap Nr nckà gS vkSj blh çdkj 37 QhV dh nhokj oxSj fdlh gd ds rkehj djkà gS bl nhokj dks uD'ks esa frjNh yky ykÃuksa ls fn[kk;k x;k gSA 5¼d½&;g fd oknh uaŒ 1 us Nr fuoà oknh uEcj 1@1 dks tfj;s cSukek e; nhxj tk;nkn ds fnukad 13&02&1968 dks cS djnh gS vkSj vc pwds tk;nkn futà dk ekfyd oknh uaŒ 1@1 gS blfy, oknh uEcj 1@1 eqdnes Qjhd cuk gSA** 7. Defendant No.1 submitted his written statement supporting the case of plaintiff, admitting the ownership and possession of plaintiff over the roof in question purchased by him through sale-deed dated 26.12.1957, after leaving 21 ft. 3 inch (east to west) and 55 ft. 3 inch (north to south) of roof area. Defendant No.1 alleged that defendant No.2 is Pujari in the temple appointed by him and defendant No.2 has constructed the wall in question and it has been constructed slightly outer area of 21 ft. 3 inch X 55 ft. 3 inch and not within the limit of tin shed area of temple. Thus defendant No.1 did not oppose the plaintiff’s suit for relief prayed for in the suit. 8. Defendant No.2 submitted his first written statement on 13.03.1964. In his first written statement, defendant No.2 while replying para No.5 of the plaint, admitted to erect the wall in question of 37 ft. long and 7 ft. height but submitted that wall has been constructed within the limits of tin shed area and no portion of plaintiff’s roof i.e. towards northern side of wall 1.5 ft and towards southern side of wall 8 inch has come under the wall. Defendant No.2 also contended that pillars up to 2 ft. height were constructed 20 years ago and wall in between the pillars up to height of 7 ft. Defendant No.2 also contended that pillars up to 2 ft. height were constructed 20 years ago and wall in between the pillars up to height of 7 ft. has been constructed four years back in the month of January, 1959. Thus, defendant No.2 mainly contested the case of plaintiff, in respect of the prayer for mandatory injunction seeking demolition of the wall in question, but simultaneously also denied the prayer for prohibitory injunction as well. In this first written statement, the defendant No.2 also contended that he is not appointed pujari by defendant No.1 but in fact has been performing seva puja in the temple since generations and contended that the defendant No.1 has no right to sell the roof of Katla Purohit Ji. It may be noticed here that when plaintiff No.1/1-Raj Kumar Sethi, was added as party and para 5 (ka) was added in suit, the defendant No.2 on the basis of sale deed dated 13.02.1968, submitted amended written statement on 03.10.1977 and then on 13.04.1978, wherein while replying para No.5 (ka) first time contended that the properties of gaddi (Dayal ki Gaddi), kitchen, temple premises, room and tin shed portion in front thereof are properties of Thakur Ji Shri Raghunath Ji which were constructed by Sadhu Atma Ram Ji, who through a document written on Baishakh Badi 5 Samvat 1946, gave these properties to Sadhu Ram Ji Mishra who was Baba (elder brother of defendant No.2’s father) therefore, defendant No.2 is shebait (pujari) and manager of the temple and the sale deeds in relation to properties of temple are null and void qua his rights. 9. From perusal of the first written statement of defendant No.2 dated 13.03.1964 and the amended written statement of defendant No.2 dated 03.10.1977 and 13.04.1978, it transpires that in the first written statement although defendant No.2 denied the claim of plaintiff over the roof in question but the thrust of contest was that the wall in question is firstly not constructed beyond the limits of tin shed area of temple premises and further it has been constructed in January, 1959 and, therefore, the plaintiff has no legal right to seek decree of mandatory injunction to demolish the wall. In amended written statement, the defendant No.2 claimed his own ownership over the temple premises, giving reference of a document of Baishakh Badi 5 Samvat 1946, taking the stand that his predecessor Atma Ram Ji constructed temple premises and gave this temple premises through one document to the Baba of defendant No.2. Here, this Court mainly concerned with the dispute of erection of wall in question on the roof and the decree for mandatory injunction in that respect, therefore, the reply of para No.5 of the plaint as given by defendant No.2 is being extracted hereunder:- ^^;g fd okn i= dk en uaŒ 5 vLohdkj gS rFkk QwBs otwgkr ds lkFk ntZ fd;k x;k gSA çfroknh us dksà Nr oknh dh 1 1@2 QhV mrj esa vkSj 8 bap nf{k.k esa oknh dh Nr ugha nckà gS vkSj blh rjg çfroknh us tks nhokj cukà gS og vius gd dh tehu rFkk Vhu'ksM rd cukà gSA oknh us uD'kk xyr is'k fd;k gSA tgka rd nhokj cukà gS ogk 2 QqV ds ik;s 20 o"kZ ifgys cus gq, Fks rFkk 2 QqV ds ik;s ds Åij 7 QqV rd nhokj 4 o"kZ igys cukà FkhA nhokj dh rkehjkr 'kq: djus dh rkjh[k 26-9-1963 oknh us xyr fy[kh gSA 2 QqV ds Åij nhokj ekStwnk mapkà rd tuojh lu~ 1959 esa o mBkà xà gS** 10. It may be noticed here that in the present second appeal, the principal point of dispute is, decree for prohibitory and mandatory injunction passed in favour of plaintiff and against defendant No.2 in respect of the roof purchased by plaintiff, leaving the portion of roof 21ft. 3 inch X 55 ft. 3 inch. which has already been left out and not included in the sale deed of plaintiff. Thus, there is no dispute about that portion of roof in the present suit filed by plaintiff. Thus, in this appeal inter se dispute with regard to the ownership rights in respect of the other properties of Purohit Ji ka Katla, including temple and gaddi between defendant No.1 and defendant No.2 is not directly involved and that issue has been assessed and examined only in relation to issue No.3 wherein the claim of plaintiff for seeking a prohibitory injunction on the roof purchased by him is to be determined. It appears that in respect of such inter se dispute between defendant No.1 and defendant No.2, two other civil suits were instituted. One Civil Suit No.661/1965 (15/77) instituted in the name of Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through Murlidhar against the Purohit Swaroop Narain Ji, decided vide judgment dated 30.09.1983 by the Court of ACJ No.2 Jaipur and another Civil Suit No.26/1983, filed on 24.02.1969, in the name of Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through Purohit Swaroop Narain Ji against defendant No.2 Murlidhar, decided vide judgment dated 23.12.1983. Certified copy of both judgments dated 30.09.1983 and 23.12.1983 were produced by appellant-defendant No.2-Murlidhar during course of first appeal along with application under Order 41 Rule 27 CPC, to plead the principle of res judicata in respect of deciding the issue No.3. 11. It may be also noticed here that in the present second appeal, appellant has also moved an application under Order 41 Rule 27 CPC dated 13.02.1992, to produce the copy of orders dated 01.08.1986 and 29.05.1990 as also one another order dated 15.03.1991. These three orders are connected to the judgment dated 23.12.1993, passed in Civil Suit No.26/1983 titled Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through Purohit Swaroop Narain Ji vs. Murlidhar. The discussion about these orders would be made while considering the substantial questions of law relating to res judicata. 12. The trial court framed issues and recorded evidence of parties. 13. Issue No.1 is whether the disputed roof in question is in the ownership and possession of plaintiff? Issue No.2 is as to whether plaintiff is entitled to get possession of portion of roof, by seeking demolition of the wall in question? Issue No.3 is as to whether defendant No.1 has no right to sell the properties of temple and plaintiff No.1 and 1/2 has no right to purchase the same, therefore, the sale if has been made in respect of the properties of temple, the same is null and void qua defendant No.2 and Thakur Ji Shri Raghunath Ji? Issue No.4 is as to whether defendant No.1-Purohit Swaroop Narain Ji and his successors are necessary party in the present suit? Issue No.4 is as to whether defendant No.1-Purohit Swaroop Narain Ji and his successors are necessary party in the present suit? Issue No5 is as to whether the suit property belongs to Thakur Ji Shri Raghunath Ji, who is not made party in the present suit, therefore, suit is liable to be rejected and Issue No.6 is related to relief? 14. The trial court, vide judgment dated 30.09.1983, held issue Nos.1 and 3 in favour of plaintiff and issue No.2 was decided against the plaintiff. Issue Nos.4 and 5 were held against defendant No.2 and finally, judgment and decree in following terms was passed while dismissing the suit for mandatory injunction : ^^nkok oknh fuEu çdkj % fMxzh fn;k tkrk gS% 1- çfroknhx.k dks tfj;s LFkk;h fu"ks/kkKk ikcan fd;k tkrk gS fd ;os oknh dh fooknxzLr Nr ij fdlh çdkj dk fuekZ.k u djsa rFkk oknh ds mi;ksx o miHkksx esa os ck/kk u igqapk;saA 2- oknh çfroknh ls nkos dk vk/kk [kpkZ Hkh ikus dk vf/kdkjh gSA 3- nkok oknh ckcr rqM+ok;s tkus nhokj [kkfjt fd;k tkrk gSA 4- çfroknh ua&2 dk uky o Nr ij gksdj eafnj esa vkus tkus dk vf/kdkj iwoZor~ cnLrwj jgsxkA** 15. The plaintiff No.1/1 and defendant No.2 filed their respective first appeals No.1/1984 and 2/1984, challenging the judgment and decree dated 30.09.1983, as already mentioned hereinabove. The first appellate court, while deciding both first appeals, vide common judgment dated 28.02.1987, has affirmed the judgment and decree dated 30.09.1983 to the extent of prohibitory injunction but by setting aside the rejection of the prayer for mandatory injunction, suit has also been decreed in relation to the prayer for mandatory injunction by issuing a direction against defendant No.2, to demolish the wall in question and deliver the possession of the area of roof, measuring 1.5 ft. towards northern side and 8 inch towards southern side, falling under the constructed wall in question. towards northern side and 8 inch towards southern side, falling under the constructed wall in question. In respect of the relief granted by trial court keeping intact the right of way of defendant No.2 is concerned, it has been observed by the first appellate court that the right of way of defendant Nos.1 and 2 is an admitted fact by plaintiff, but since in the present suit, the issue of right of way available to defendant No.2 through the roof in question of plaintiff is not to be adjudicated, therefore, that part of relief granted by trial court in the judgment dated 30.09.1983 has been ordered to be deleted. 16. The defendant No.2, in the instant second appeal, has assailed both judgments and decree dated 30.03.1983 and 28.02.1987. Appellant has also filed an application under Order 41 Rule 27 CPC dated 13.02.1992, to place three orders dated 01.08.1986, 29.05.1990 and 15.03.1991 on record and has prayed to consider these documents as additional evidence. 17. The Co-ordinate Bench of this Court, vide order dated 06.07.1990, framed question of law “whether in the facts and circumstances of the case the doctrine of res judicata can be invoked in this case?” for consideration. But during the course of hearing of arguments on the appeal, issues which fall for consideration by this Court have also given rise to some other questions of law and, therefore, invoking the powers of Section 100 (5), proviso, this Court, vide order dated 08.09.2022 framed additional substantial question of law “whether directions for demolition of wall in question and deletion of the relief in respect of keeping intact the right of way of defendant No.2 through roof in question, as done by first appellate court in the impugned judgment dated 28.02.1987 is based on perverse findings and stands illegal & unjust, therefore, to this extent at least, the judgment dated 30.09.1983 is liable to be restored in the peculiar facts and circumstances of present case as also in the interest of justice?” 18. Learned counsel for both parties have been heard on both substantial questions of law. 19. Learned counsel for both parties have been heard on both substantial questions of law. 19. In order to deal with both substantial questions of law, referred hereinabove, the disputed points which have emerged between the parties and which are required to be considered by this Court, to answer the substantial question of law are as under : (I) Whether the decree for prohibitory injunction passed in favour of plaintiff is not sustainable, in the light of judgments dated 30.09.1983 passed in Civil Suit No.15/77 (661/65) titled Thakur Ji Shri Raghunath Ji through Murlidhar vs. Purohit Swaroop Narain Ji and judgment dated 23.12.1983, passed in Civil Suit No.26/1983 titled Thakur Ji Shri Raghunath Ji through Purohit Narain Ji vs. Murlidhar and both judgments operate as res judicata against the impugned judgment and decree? (II) Whether decree for mandatory injunction passed in the impugned judgment dated 28.02.1987 to demolish the wall in question is against law of limitation and suffer from perversity? (III) Whether the right of way to defendant No.2 for coming and going to the gaddi and temple premises through the roof in question, being an admitted right, therefore, keeping intact such right as observed by the trial court in the judgment dated 30.09.1983, has unwarrentedly been ordered to be deleted by the first appellate court, in its judgment dated 28.02.1987 and such deletion may invite unwarranted litigation in future, therefore, this part of judgment dated 30.09.1983 deserves to be restored? Point No. I relates to substantial question of law No.1 and point Nos. II & III pertain to substantial question of law No.2. 20. Point No. I relates to substantial question of law No.1 and point Nos. II & III pertain to substantial question of law No.2. 20. Since the impugned decree for prohibition passed in favour of plaintiff is based on concurrent findings of fact, whereas the decree for mandatory injunction is of reversal, therefore, the scope of the High Court to interfere with the findings either recorded concurrently by two courts or recorded by first appellate court after reversal of the findings of trial court, while exercising its jurisdiction under Section 100 of CPC is required to keep in mind and for that purpose, few of the judgments of Hon’ble Supreme Court, wherein the scope of High Court to exercise its jurisdiction under Section 100 of CPC has been discussed and expounded are as under:- In case of Navaneethammal v. Arjuna Chetty [ (1996) 6 SCC 166 ] the Hon’ble Supreme Court held as under:- “Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings for the lower courts…….Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material.” Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [ (2019) 8 SCC 637 ], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under : “When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., [AIR 1943 Nag 117 para 43]” The Hon’ble Supreme Court, in case of Kulwant Kaur v. Gurdial Singh Mann [ (2001) 4 SCC 262 ] has dealt with the limited leeway available to the High Court in second appeal and in para No.34 observed as under:- “34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication—what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: ‘103. Needless to say however, that perversity itself is a substantial question worth adjudication—what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: ‘103. Power of High Court to determine issues of fact.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal- (a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or courts by reason of a decision on such question of law as is referred to in Section 100.’ The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.” In case of S.R. Tewari v. Union of India [ (2013) 6 SCC 602 ], the Hon’ble Supreme Court held as under:- “30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is ‘against the weight of evidence’, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [ (1984) 4 SCC 635 ], Kuldeep Singh v. Commr. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [ (1984) 4 SCC 635 ], Kuldeep Singh v. Commr. of Police [ (1999) 2 SCC 10 ], Gamini Bala Koteswara Rao v. State of A.P. [ (2009) 10 SCC 636 ] and Babu v. State of Kerala [ (2010) 9 SCC 189 ]).” The Hon’ble Supreme Court in case of Damodar Lal vs. Sohan Devi [ (2016) 3 SCC 78 ] while discussing the concept of perversity, how to be dealt with, observed as under:- “Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.” 21. Keeping the parameters of law as discussed hereinabove, now this Court is dealing with all three points (I, II & III), in order to decide both questions of law. 22. The present suit was instituted by Prakash Chandra Kasliwal on 09.10.1963, seeking relief of prohibitory and mandatory injunction, in respect of roof in question situate on the building, known as Purohit Ji Ka Katla, Chowkri Vishveshwar Ji Johri Bazar Jaipur. 23. The plaintiff is claiming his ownership and possession over the roof in question placing reliance upon the sale deed dated 26.12.1957 (Ex.1). This sale deed was executed by Badhi Chand in favour of Prakash Chandra Kasliwal (plaintiff No.1) who in turn, during trial of suit sold the property including roof in question to Raj Kumar Sethi through sale deed dated 13.02.1968 (Ex.4) who impleaded as plaintiff No.1/1. It has come on record that Badhi Chand purchase the property from Purohit Swaroop Narain who is defendant No.1. As far as defendant No.1 is concerned, he has not disputed the ownership and possession of plaintiff over the roof in question, on the basis of sale deed dated 26.12.1957. It has come on record that Badhi Chand purchase the property from Purohit Swaroop Narain who is defendant No.1. As far as defendant No.1 is concerned, he has not disputed the ownership and possession of plaintiff over the roof in question, on the basis of sale deed dated 26.12.1957. it is undisputed that the portion of roof measuring 21ft. 3 inch east to west and 55 ft. 3 inch south to north has been left out from sale, where towards north east corner of roof, one gaddi of Dayal Ji is constructed and towards southern side, one kitchen, temple and room with tin shed portion in frond thereof are situated. The plaintiff has not raised any dispute about the portion of gaddi, temple and kitchen etc. except making an averment in the plaint that defendant No.1 is owner of that portion who has kept defendant No.2, to perform the seva puja in the temple. The plaintiff has admitted the possession of defendant No.2 over the portion of temple premises as pujari and over the roof to the extent of tin shed portion measuring 21ft. 3 inch and 55 ft. 3 inch which undisputedly was not purchased by plaintiff. As a matter of fact, defendant No.2 on the strength of his actual and physical possession over the temple premises, denied the plaintiff’s claim for prohibitory and mandatory injunction in respect of the roof in question. The dispute, in respect of erection of wall in question and thereby pressing/covering the slight area of portion of roof purchased by plaintiff and the right of way of defendant No.2 through the roof purchased by plaintiff, are concerned, the same would be considered while deciding the substantial question of law No.2 dealing with the point Nos.II & III. 24. Herein, this Court has noticed that defendant No.2 in his first written statement dated 13.03.1964, denied the right to sell the property by defendant No.1 and admitted himself to perform seva puja in the temple since generations and declined his appointment as pujari by defendant No.1. Defendant No.2 has contended that he is in actual use and possession of the temple premises and also of roof up to the limit of tin shed and further up to the place of basils tree, therefore, the defendant No.1 has no right to sell the roof in question to this extent to the plaintiff. Defendant No.2 has contended that he is in actual use and possession of the temple premises and also of roof up to the limit of tin shed and further up to the place of basils tree, therefore, the defendant No.1 has no right to sell the roof in question to this extent to the plaintiff. When, after filing written statement dated 13.03.1964 by defendant No.2, the original plaintiff-Prakash Chandra Kasliwal sold the property to Raj Kumar Sethi through sale deed dated 13.02.1968 and Raj Kumar Sethi was impleaded as plaintiff No.1/1 and amended plaint with insertion of additional paragraph No.5 (ka) relating to the purchase of suit property by plaintiff No.1/1 through sale deed dated 13.02.1968 was filed, the defendant No.2 submitted his written statement to the amended plaint and in the amendment written statement dated 03.10.1977 and 13.04.1978, while replying para No.5 (ka), defendant No.2 claimed that the properties in his possession are the properties of idol Thakur Ji Shri Raghunath Ji, which was constructed by one Sadhu Atma Ram Ji and Sadhu Atma Ram Ji transferred these temple properties to one Shri Sadhu Ram Mishra who happens to be disciple, through a document dated miti Baishakh Badi 5 Samvat 1946. Sadhu Ram Mishra was alleged to be Baba of defendant No.2 being elder brother of his father and with such additional pleadings, defendant No.2 alleged that he is having the possession over the temple premises as shebait (pujari) and manager and the properties belongs to Thakur Ji Shri Raghunath Ji, therefore, any sale of such properties is null and void. 25. Due to such dispute raised by defendant No.2 by way of his amended written statement, issue No.3 was framed by the trial court to the effect as “as to whether defendant No.1 has no right to sell the properties of temple and plaintiff Nos.1 and 1/2 has no right to purchase the same, therefore, the sale if has been made in respect of the properties of temple, the same is null and void qua defendant No.2 and Thakur Ji Shri Raghunath Ji?” 26. While deciding issue No.3, trial court as well as first appellate court, on appreciation of oral and documentary evidence of both parties, have recorded a fact finding that defendant No.2 admits that shops at ground floor in the Katla Purohit Ji were the properties of Purohit Swaroop Narain Ji and therefore, the roof situated on these properties at the first floor also belongs to Purohit Swaroop Narain Ji. The document of Baishakh Badi 5 Samvat 1946(Ex.4) has been disbelieved as firstly, the document has been found to be suspicious and neither the details of properties of temple are mentioned therein nor stamp was purchased in the name of executant, his signature is not proved and is not registered. Both courts below have noticed that defendant No.2 has not challenged the sale made by defendant No.1-Purohit Ramswaroop Narain Ji to Badhi Chand and further has disputed the sale deed made by Badhi Chand in favour of plaintiff-Prakash Chandra Kasliwal and the subsequent sale deed dated 13.02.1968, executed by Prakash Chandra Kasliwal to plaintiff No.1/1-Raj Kumar Sethi, first time in the amended written statement, therefore, his change of stand is not believable. Further, taking into account the admission of defendant No.1, in favour of plaintiff, and all evidence on record, the issue No.3 has been decided against defendant No.2. 27. This Court is concerned with findings of issue No.3 in respect of the roof in question which is subject matter of dispute in the present suit and on which the plaintiff claimed his ownership and possession on the basis of sale deed dated 26.12.1957. It has already been clarified that in the present suit, there is no dispute about the other portion of roof, where gaddi and temple etc. are situated. 28. The defendant No.2-appellant sought to apply the principle of res judicata for deciding the issue No.3 and thereby on the present civil suit of plaintiff, placing reliance upon two judgments dated 30.09.1983 and 23.12.1983. He produced certified copy of both these judgments during the course of his first appeal No.2/1984 along with an application under Order 41 Rule 27 CPC. (a). He produced certified copy of both these judgments during the course of his first appeal No.2/1984 along with an application under Order 41 Rule 27 CPC. (a). The judgment dated 30.09.1983 has been passed in an another suit bearing No.15/1977 (661/65) by the Court of Additional Civil Judge, No.2 Jaipur City which was filed by defendant No.2-Murlidhar against defendant No.1-Purohit Swaroop Narain Ji having titled Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through Murlidhar Shabiat Pujari and Manager vs. Purohit Swaroop Narain. This suit is in respect of the other properties, relating to the dispute of ownership between the Murlidhar and Purohit Swaroop Narain Ji, which is different property than the suit property of roof in the present suit. The judgment passed in that suit has no concern with the roof in question which is subject matter of disputed in the present suit. The defendant No.2 placed reliance on the judgment dated 30.09.1983, passed in another suit, only to contend that plaintiff-Prakash Chandra Kasliwal admitted in that suit that the roof in question to be the property of temple. The first appellate court has observed in respect of the judgment dated 30.09.1983, passed in another suit No.15/1977 that the roof in question which is subject matter of dispute in the present suit was not disputed property in that suit No.15/1977. Further, the plaintiff has not claimed any right over the portion of 21ft. 3 inch X 55 ft. 3 inch which was not purchased by him. Therefore, the first appellate court has held that the judgment dated 30.09.1983 passed in civil suit No.15/1977 has no effect of the principle of res judicata as far as the judgment passed in the present suit No.16/1977 is concerned. It was also noticed that only the copy of judgment dated 30.09.1983 has been produced as additional evidence and the plaint, written statement and issues of Suit No.15/1977 were not produced. The issue of res judicata is a mixed question of fact and law which requires appreciation that the issue involved in the subsequent suit is directly and substantially, was in issue in any previously instituted suit, therefore, pleadings of previous suit are also necessary to examine the similarity of the issue in both the suits. The issue of res judicata is a mixed question of fact and law which requires appreciation that the issue involved in the subsequent suit is directly and substantially, was in issue in any previously instituted suit, therefore, pleadings of previous suit are also necessary to examine the similarity of the issue in both the suits. The defendant No.2 for no good reason has not produced the plaint and written statement, issues involved in the suit No.15/77 (661/65) and only the copy of judgment of suit dated 30.09.1983 has been produced. The perusal of the judgment has revealed that the roof in question which is subject matter of dispute in the present suit, was not at all involved in that suit No.15/1977 whereupon judgment dated 30.09.1983 has been passed. Further it has also come on record that judgment dated 30.09.1983 is not final but has been assailed by way of filing first appeals, which are pending. Therefore, first appellate court declined to accept that judgment to operate as res judicata in the present suit. This Court, does not have any disagreement with findings of the first appellate court, recorded in relation to the judgment dated 30.09.1983 passed in the civil suit No.15/1977, wherein inter se dispute between defendant No.2 and defendant No.1, was decided and that judgment have no effect of res judicata, in the present suit filed by plaintiff. The subject matter of suit property is wholly different. (b). Another judgment dated 23.12.1983 was passed by the Court of Additional Civil Judge No.2, Jaipur City in another Civil Suit No.26/1983 titled Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through Purohit Swaroop Narain Ji vs. Murlidhar instituted on 24.02.1969 by defendant No.1-Purohit Swaroop Narain Ji against defendant No.2 Murlidhar. This judgment also pertains inter se between defendant No.1 and defendant No.2 in respect of other properties. The roof in question which is subject matter in the present suit is not in the issue in that suit. Further this judgment dated 23.12.1983 has been delivered after deciding the present suit vide judgment dated 30.09.1983. Thus, the fundamental principle, for application of the principle of res judicata is absent. The roof in question which is subject matter in the present suit is not in the issue in that suit. Further this judgment dated 23.12.1983 has been delivered after deciding the present suit vide judgment dated 30.09.1983. Thus, the fundamental principle, for application of the principle of res judicata is absent. The first appellate court has rightly declined the applicability of the principle of res judicata on the basis of this judgment dated 23.12.1983, to the present suit and this Court does not find any infirmity/illegality in the findings of the first appellate court. 29. Here, it is worthy to deal with the application under Order 41 Rule 27 CPC dated 13.02.1992 filed by appellant in the present appeal, the certified copies of orders dated 01.08.1986, 29.05.1990 and 15.03.1991 sought to be placed on record which pertain to the judgment dated 23.12.1983. 30. In fact, it has been discussed about the judgment dated 23.12.1983 passed in the civil suit No.26/1983, filed by and on behalf of Purohit Swaroop Narain Ji against Murlidhar that the same has no effect of res judicata in the present suit. After passing the judgment dated 23.12.1983, from the side of plaintiff-Purohit Swaroop Narain Ji, an application No.33/1984 was moved to recall the judgment dated 23.12.1983. But this application has been dismissed vide order dated 01.08.1986. Against this order dated 01.08.1986, appeal No.109/1986 was preferred which too has been dismissed vide order dated 29.05.1990. That apart, one review application bearing Case No.34/1984 was also filed by and on behalf of Purohit Swaroop Narain Ji, seeking review of the judgment dated 23.12.1983. This review application has also been dismissed vide order dated 15.03.1991. Thus, all these three orders dated 01.08.1986, 29.05.1990 and 15.03.1991, by all means are connected with the judgment dated 23.12.1983, passed in Civil Suit No.26/1983 and virtually affirm the judgment dated 23.12.1983. This Court has already discussed that the judgment dated 23.12.1983 itself has not application of res judicata to the present suit, therefore, all these three orders through which that judgment dated 23.12.1983 has been affirmed, are not required to be taken on record in the present second appeal. Accordingly, application under Order 41 Rule 27 CPC dated 13.02.1992 filed by the appellant is hereby dismissed. 31. Accordingly, application under Order 41 Rule 27 CPC dated 13.02.1992 filed by the appellant is hereby dismissed. 31. The whole discussion made hereinabove leads to the conclusion that the judgment dated 30.09.1983 passed in Civil Suit No.15/77 (661/65) and the judgment dated 23.12.1983 passed in Civil Suit No.26/1983 have no application of the principle of res judicata to the present suit and the judgment and decree passed in the present suit does not affect by these judgments. 32. After discussion in respect of applicability of the principle of res judicata, it may be noticed that as far as issue No.3 is concerned, there are concurrent findings of fact of both courts below, passed on appreciation of oral and documentary evidence to conclude that plaintiff has acquired ownership and possession of the roof in question through registered sale deeds and therefore, is entitled for the decree of prohibitory injunction against both defendants restraining them not to raise any construction on the roof in question. The principle of law as expounded in case of Navaneethammal v. Arjuna Chetty (supra) and State of Rajasthan v. Shiv Dayal (supra), which has again been reiterated in recent judgment delivered in case of C. Doddanarayan Reddy vs. C. Jayarama Reddy [ (2020) 4 SCC 659 ] is applicable in the present case in respect of the decree for prohibitory injunction and this Court is not inclined to interfere with the impugned judgment, to the extent of the decree of prohibitory injunctions passed in favour of plaintiff and the same is hereby affirmed. The point No.1 stands decided against the appellants and as a consequence, when it has been observed that the principle of res judicata is not applicable to the present case, therefore, substantial question of law no.1 stands decided negative and is answered against the appellant. 33. Substantial question of law framed vide order dated 08.09.2022 is as under:- “whether directions for demolition of wall in question and deletion of the relief in respect of keeping intact the right of way of defendant No.2 through roof in question, as done by first appellate court in the impugned judgment dated 28.02.1987 is based on perverse findings and to this extent at least, the judgment dated 30.09.1983 is sustainable in the peculiar facts and circumstances of present case as also in the interest of justice?” 34. In relation to the prayer of plaintiff for seeking demolition of the wall in question, issue No.2 was framed. 35. The limitation for the suit for mandatory injunction is not prescribed in any specific provision under the Limitation Act. In the old Limitation Act of 1908 the provision of Article 120 was applicable for this nature of relief which provides limitation of six years. After commencement of the present Limitation Act, 1963 w.e.f. 05.10.1963, the earlier provision of Article 120 has been renumbered as Article 113 and wherein the period of limitation of six years has been reduced to three years. Thus, on the suits seeking decree of mandatory injunction, as per Article 113 of Limitation Act, 1963, the limitation is three years from the date of accrual of the right to sue. As per record, it stands clear that present suit was instituted on 09.10.1963. By that time, the Limitation Act of 1963 has come in force as this Act received the assent of the precedent on 5th October, 1963 and published in the gazette of India, dated 5th October, 1963. Thus has come in operation w.e.f. 5th October, 1963. Obviously, after commencement of the Limitation Act of 1963, w.e.f. 05.10.1963, the provisions of Article 120 enumerated under the old Limitation Act, 1908 stood ceased to operate. The trial court was right in applying the period of limitation three years as per Article 113 of Limitation Act, 1963 and holding the present suit for seeking the relief of mandatory injunction to demolish the wall in question as barred by limitation. But the first appellate court has committed illegality and jurisdictional error, in assuming the limitation of six years for the relief of mandatory injunction, by applying Article 120 of the old Limitation Act, 1908. The first appellate court has not adverted to the date of commencement of the Limitation Act, 1963 and the date of institution of the present suit as by that time, the provision of Article 120, under the old Limitation Act, 1908 was not in operation. The first appellate court has not adverted to the date of commencement of the Limitation Act, 1963 and the date of institution of the present suit as by that time, the provision of Article 120, under the old Limitation Act, 1908 was not in operation. It is thus apparent that the directions issued by the first appellate court, decreeing the plaintiff’s suit of mandatory injunction to demolish the wall in question stand erroneous and against the law of limitation, as such to this extent the judgment dated 28.02.1987 passed by first appellate court deserves to be quashed and the judgment dated 30.09.1983 is liable to be restored. 36. That apart, the first appellate court has not adhered to the other relevant factors, which can be noticed in the facts and circumstances of present case and renders the impugned judgment dated 28.02.1987 passed by appellate court perverse to the extent of issuing direction to demolish the wall in question. Following factors have not been taken into account by the first appellate court:- “(a) Originally, the prayer for mandatory injunction to demolish the wall in question was made by Prakash Chandra Kasliwal who instituted the suit on 09.10.1963. It is undisputed fact that prior to that wall in question has been constructed. The plaintiff has sold the property including the roof in question of which the wall in question has been erected to one Raj Kumar Sethi during the course of suit, through sale deed dated 13.02.1968 and thereafter the subsequent purchaser Raj Kumar Sethi also got his impleadment in the suit as plaintiff No.1/1 and the cause of seeking demolition of the wall was pursued in the suit jointly by original plaintiff Prakash Chandra Kasliwal and the subsequent purchaser plaintiff No.1/1-Raj Kumar Sethi. The trial court has dismissed the prayer of plaintiffs to demolish the wall and dismissing the suit for mandatory injunction to this extent vide order dated 30.09.1983. The cause for demolition of wall was not pursued by the original plaintiff Prakash Chandra Kasliwal but was pursued by the subsequent purchaser Raj Kumar Sethi, who alone filed the first appeal No.1/1984 against the dismissal of suit for mandatory injunction and declining the prayer for demolition of the wall. Undisputedly, as far as subsequent purchaser Raj Kumar Sethi is concerned, he purchase the roof in question along with the wall in question which has been erected by defendant No.2. Undisputedly, as far as subsequent purchaser Raj Kumar Sethi is concerned, he purchase the roof in question along with the wall in question which has been erected by defendant No.2. Thus as far as subsequent purchaser Raj Kumar Sethi is concerned, his right for seeking demoliton of wall in question, obviously has become barred by limitation and was also suffered with acquiescence. In the first appeal, the original plaintiff-Prakash Chandra Kasliwal did not pursue the cause of action for seeking demolition of the wall, therefore, the first appeal preferred by the subsequent purchaser Raj Kumar Sethi alone who in the capacity of being a subsequent purchaser, the directions to demolition of the wall in question could not have been passed. (b) It is not in dispute that the wall in question is 37 ft. in length and 7 ft. in height. Such large wall in not possible to be constructed within a day or two. There is nothing on record that the plaintiff Prakash Chandra Kasliwal ever objected the defendant No.2 at the time of raising construction of the wall in question. Further, the plaintiff himself admits that towards northern side, only a portion of 1.5 ft. of his roof has come under the wall and towards southern side only a portion of 8 inch of his roof has come under the wall in question. Thus, it is apparent that the wall has been constructed in slanting manner. Considering the area of encroachment, alleged to be come under the constructed wall, it may not be assumed that defendant No.2, deliberately and intentionally extended the construction of wall, in order to include such minor portion of roof of the plaintiff or having any intention to encroach thereupon. Obviously, if such area has come during the course of construction of wall, same is some mistake of measurement that too on the part of mason concerned. The defendant No.2, may not be assumed to have an intention to encroach upon the roof of plaintiff, only to this minimum area of 1.5 ft. and 8 inch and that too, when the area of measurement is an erratic and irregular manner. (c) The plaintiff-Prakash Chandra Kasliwal has instituted the suit for mandatory injunction, after construction of the wall. The defendant No.2, may not be assumed to have an intention to encroach upon the roof of plaintiff, only to this minimum area of 1.5 ft. and 8 inch and that too, when the area of measurement is an erratic and irregular manner. (c) The plaintiff-Prakash Chandra Kasliwal has instituted the suit for mandatory injunction, after construction of the wall. He has not pleaded that at the time of construction or during the course of construction of wall, he pointed out to defendant No.2 that the wall is being constructed covering his roof area towards northern side 1.5 ft. and towards southern side 8 inch. It is only after the complete construction of wall, the plaintiff has noticed that such area of his roof has been pressed, by the construction of wall in question. Considering this minimal area of dispute, the plaintiff could have make an alternative prayer asking for the damages/compensation from the defendant No.2 at least when the suit was brought after construction of wall. The plaintiff is seeking demolition of the wall in question just in order to get possession of his roof area which is very small portion it means towards northern side of wall 1.5 ft. and towards southern side of wall 8 inch only. Even an alternative prayer for damages has not been made by plaintiff which shows the bad intention on the part of plaintiff. In such scenario, the filing of present suit by plaintiff-Prakash Chandra Kasliwal having collusion with the defendant No.1 Purohit Swaroop Narain who supported the plaintiff’s case, may not be ruled out. If the plaintiff was so serious for his rights over the coming of his small portion and negligible portion of roof under the wall, while praying for demolition of the wall being a prudent and reasonable man, he could have also made an alternative prayer for claiming damages also if demolition is not permitted by the court. If the prayer for damages has been made, though as an alternative prayer, the court could have consider to that aspect of matter, to maintain the balance of interest and equity between both parties and some amount of damages might be awarded to the plaintiff. If the prayer for damages has been made, though as an alternative prayer, the court could have consider to that aspect of matter, to maintain the balance of interest and equity between both parties and some amount of damages might be awarded to the plaintiff. In that backdrop of fact, the trial court may not be said to be unjust and improper in not decreeing the suit for mandatory injunction and not passing any direction to demolish the wall in question, apparently just considering the area under dispute is meager and very small. Approach is a practical and justice oriented approach. The alternative prayer of damages was not made in the suit, so trial court could not consider the same. The first appellate court without adverting to this aspect of the matter, has adopted a harsh and pedantic approach, in upsetting the findings of trial court and by issuing directions in mandatory form to demolish the wall in question, just to get free the portion of roof of plaintiff which is towards northern side of wall 1.5 ft. only and towards southern side of wall 8 inch only. In that view of matter, the directions issued by the first appellate court may not be said to be just and proper. In the interest of justice, such directions may not be sustained, now after expiry of about 58 years. It is trite law that decree for mandatory injunction can be passed only in exceptional and extraordinary circumstances. This Court is convinced that no such exceptional and extraordinary circumstances exist in the present case so as to grant of decree for mandatory injunction in favour of plaintiff. Since the plaintiff has not prayed for any damages, even as an alternative relief, in case of denial of the decree for mandatory injunction, therefore, the damages neither can be assessed nor can be awarded by this Court. 37. After discussion of the factual matrix and evidence available on record, and applying the principle of law as expounded by Hon’ble Supreme Court in case of Kulwant Kaur v. Gurdial Singh Mann (supra) and S.R. Tewari v. Union of India (supra) and further in case of Damodar Lal vs. Sohan Devi (supra), this Court finds that first appellate court has committed perversity in reversing the judgment of trial court dated 30.09.1983. In respect of decreeing the plaintiff’s suit for mandatory injunction and decree for mandatory injunction to demolish the wall in question, passed by first appellate court can be said to be suffer from perversity as well, which is against law of limitation also. 38. In that view of matter, the point No.II is decided in favour of appellant and the judgment and decree dated 28.02.1987 is set aside to the extent of passing direction for demolition of the wall in question and to this extent, the judgment dated 30.09.1983 is restored. Point No.(III) Whether the right of way to defendant No.2 for coming and going to the gaddi and temple premises through the roof in question, being an admitted right, therefore, keeping intact such right as observed by the trial court in the judgment dated 30.09.1983, is not harmful to the plaintiff nevertheless such obstruction has unwarrentedly been ordered to be deleted by the first appellate court, in its judgment dated 28.02.1987 and rather such deletion now may invite unwarranted litigation in future, therefore, this part of judgment dated 30.09.1983 deserves to be restored? 39. The plaintiff in his plaint itself has admitted the right of way of defendant No.1 through his purchased portion of roof, for coming and going to the temple premises and gaddi. This right of way has been admitted to be available to defendant No.2 as well in evidence. In the sale deed dated 26.12.1957 (Ex.1) this right of way is already protected. The plaintiff has conferred this right of way upon the defendant No.1 but defendant No.2 being in actual and physical possession of the temple premises, is in fact entitled to exercise this right of way, through the roof in question of plaintiff, for coming and going to his gaddi and temple. The plaintiff in his evidence has not disputed such right of way, available to defendant No.2. Thus, as per pleadings, documents and evidence, the right of way to defendant No.2, for coming and going to the gaddi and temple premises through the roof purchased by plaintiff is an undisputed fact and, therefore, the trial court just in the operative portion of the judgment dated 30.09.1983 observed that this right of way already available to defendant No.2 and is undisputed will remain intact. The first appellate court too has not disbelieved, in respect of the right of way available to defendant No.2, rather has affirmed that right but has passed an order to delete the observations of the trial court in this regard as recorded in the judgment dated 30.09.1983, only for the reason that the same is not subject matter in issue in the present suit and although plaintiff admits the right of defendant to have a way through the roof of plaintiff for coming and going to the gaddi and temple premises, yet, if any, dispute would arise in relation to this right, the defendant No.2 may get adjudicate that dispute in separate proceedings. 40. Such reasonings assigned by the first appellate court to upset the observations noted to keep intact the right of way of defendant No.2, obviously invite a future litigation. Once this is an admitted and undisputed right, the trial court, if had indicated that right in the operative portion of judgment, the same does not lead to any miscarriage of justice and it was not warranted for first appellate court to pass an order to delete that observation of the trial court from the judgment dated 30.09.1983. It may not be held in the interest of justice. The exercise of powers by the first appellate court to this extent, seems to be unwarranted rather may lead to a fresh litigation and would propel multiplicity of litigation, which showed be curbed by all possible means. This Court finds that if the right of defendant No.2, to have a right of way through the lands in question of plaintiff for coming and going to the temple premises, has already been affirmed in the body of judgment though it was not necessary for the trial court to incorporate that right in the operative portion of judgment as defendant No.2 has not claimed any specific relief in that respect. Nevertheless, once the trial court has expressly indicated that right to keep intact, it was not warranted for the first appellate court to pass an order to delete that part of judgment from the operative portion of decree dated 30.09.1983. Nevertheless, once the trial court has expressly indicated that right to keep intact, it was not warranted for the first appellate court to pass an order to delete that part of judgment from the operative portion of decree dated 30.09.1983. Therefore, the point No.3 is decided in the manner that the judgment dated 28.02.1987, passed by first appellate court to the extent of cancelling the point No.4 noted in the judgment dated 30.09.1983, keeping intact the right of way of defendant No.2 through the roof of plaintiff, for coming and going to his gaddi and temple premises, is not sustainable and this part of relief, being an innocuous in nature, which would certainly avoid the future litigation between parties in this respect, is maintained. Accordingly, point No.III stands decided in favour of appellant. 41. For discussion made hereinabove, the substantial question of law No.2 is answered affirmative and stands decided in favour of appellant and as a result, the judgment dated 28.02.1987 to the extent of issuing direction for demolition of wall in question and deletion of the observation in relation to keeping intact the right of way of defendant No.2, is set aside and the judgment dated 30.09.1983 is restored. 42. The upshot of discussion is that second appeal is partly allowed and impugned judgment dated 28.02.1987 is hereby quashed to the extent of decreeing the suit for mandatory injunction and deleting the right of way available to defendant No.2 through the roof in question and the judgment dated 30.09.1983 is restored. There is no order as to costs. 43. All pending application(s), if any, stand(s) disposed of. 44. Record be sent back.