Amar Singh vs Durgadan @ Durga Singh And Ors

By the instant second appeal, appellant-plaintiff has challenged judgment and decree dated 14.09.2017 passed by Additional District Judge No.1, Bhilwara Camp, Gangapur (for short, 'learned lower appellate Court'), whereby learned lower appellate Court, while dismissing his appeal has affirmed judgment dated 28.09.2016 passed by Senior Civil Judge, Gangapur, District Bhilwara (for short, 'learned trial Court').

The facts, in brief, are that appellant-plaintiff filed a suit for declaration, mandatory and perpetual injunction against respondent-defendant precisely on the anvil of his easementary right of way through Khasra Nos.666 and 664. As per the version of appellant-plaintiff, he is having Khatedari right of Khasra No.672. In the plaint, appellant has specifically averred that he is using the way for ingress and egress to the agricultural field in Khasra No.672 from time immemorial and, therefore, it has created an easementary right in his favour. It is also averred that his right is being obstructed by the respondents, therefore, they be restrained from creating any hindrance and obstruction in his ingress and egress.

The suit is contested by the respondents by filing written submissions wherein, besides other objections, it is also pleaded that alternative way is available to the appellant-plaintiff for having access to his agricultural field.

Learned trial Court framed issues and rival parties tendered their evidence.

Upon conclusion of evidence, learned trial Court proceeded to decide the suit and upon appreciation of evidence decided Issue No.1 against the appellant with the observation that Khasra No.664 is not entered in the name of Durgadan, on the contrary, he is Khatedar of Khasra Nos.673 and 679. Upon appreciation of evidence, learned trial Court has found that the land through which the appellant has claimed his way are entered in the name of third party in the revenue records and those incumbents have not been arrayed as defendants. In this regard, learned trial Court has also relied on the admission of appellant during his deposition. While admitting the fact that the land belongs to third party, appellant, in order to show his grievance against respondents, has stated that he has impleaded them as party because they have created obstruction and hindrance in his ingress and egress. Taking into account the entire evidence, learned trial Court finally decided Issue No.1 against appellant. While switching on to Issue Nos.2 & 3, learned trial Court has dilated on the concept of easement wherein existence of two property is necessary, i.e., property having dominant heritage and servient heritage. The Court has also found that appellant has not impleaded the incumbent against whom he is claiming dominant heritage so as to categorize that property as servient heritage. With this finding, both the issues have been decided against the appellant. The decision on these three crucial issues, eventually entailed rejection of the suit.

Being aggrieved by the judgment and decree of learned trial Court, appellant preferred first appeal before learned lower appellate Court. Learned lower appellate Court, made endeavour to appreciate evidence de novo and by pressing into service Order 41 Rule 31 CPC made endeavour to re-examine the finding on all the issues meticulously. After examining the findings on the crucial issues, learned lower appellate Court fully concurred with the findings and conclusions of learned trial Court.

I have heard learned counsel for the appellant and perused both the judgments.

Upon perusal of impugned judgments, in my opinion, it is a clear case of concurrent finding of fact recorded on sound appreciation of evidence. The appreciation of evidence by both the Courts below by no stretch of imagination can be termed as perverse, nor it can be said that the Courts below have ignored material evidence or misconstrued the evidence, which was available on record. The pre-requisite for maintainability of second appeal is existence of substantial question of law, which I am afraid, is not available in the instant appeal. The so-called proposed substantial questions of law are pure and simple questions of fact, which cannot be examined by this Court in exercise of second appellate jurisdiction.

Consequently, the appeal fails and same is hereby dismissed.