Bhagirath vs Narsingh Lal And Ors

Appellant-plaintiff has preferred this second appeal to challenge judgment dated 12.02.2019, passed by District Judge, Merta (for short, 'first Appellate Court') dismissing his first appeal against judgment and decree dated 24.01.2014, passed by Civil Judge (Senior Division), Merta (for short, 'trial Court').

The bare necessary facts for the purpose of this appeal are that appellant-plaintiff filed a suit for permanent injunction against respondents, inter-alia, on the ground that in the chowk situated between the dwelling houses of appellant and defendant soak-pit of appellant is existing since last 40 years. It is also averred that in the guise of constructing soak-pit, the respondents are damaging the soak-pit of appellant, and therefore, they may be restrained from carrying out construction of soak-pit, which may damage the soak-pit of the appellant. The suit was contested by respondents and a counter-claim was also laid on their behalf seeking the relief that appellant may be restrained from interfering with the work carried out by them for construction of soak-pit.

The learned trial Court, on the basis of pleadings of the rival parties, settled five issues for determination. The parties led their evidence including oral evidence and also tendered documentary evidence. On behalf of appellant, requisite evidence was tendered to authenticate his cause and per contra respondents submitted evidence to substantiate their defence. After conclusion of the evidence, the learned trial Court heard final arguments and by its judgment dated 24.01.2014, rejected the suit filed by appellant as well as counter claim of the respondents.

Being aggrieved by the same, appellant preferred first appeal but no endeavour was made by respondents to challenge the judgment of the learned trial Court. It so happened that during pendency of the appeal, requisite construction of soak-pit was carried out by the respondents, and therefore, at the behest of appellant, an endeavour was made for appointment of Court Commissioner. Be that as it may, the learned first Appellate Court, after hearing rival contentions, fully concurred with the findings and conclusions of the learned trial Court and rejected the appeal.

I have heard learned counsel for the appellant and perused the impugned judgment.

The appellant has made endeavour to challenge a concurrent finding recorded by both the Courts below. True it is that, while exercising jurisdiction under Section 100 CPC, this Court is not loathed with the power to interfere with the concurrent finding of fact but then, the scope for interference with the concurrent finding of fact is very much limited. Precisely, for interfering with the concurrent finding of fact, the Court has to see whether the findings recorded by the Courts below are perverse or based on non-consideration of material evidence or misconstruction of material evidence.

In totality, I am unable to find any such infirmity in the impugned judgments rendered by both the Courts below. The contention of learned counsel for the appellant, that the learned first Appellate Court has not decided application for appointment of Commissioner, appears to be quite alluring but of no substance. As a matter of fact, Court Commissioners are not meant for collecting evidence and the party, which is approaching the Court for redressal of grievance, is expected to tender requisite evidence to substantiate his claim.

As the learned first Appellate Court has examined the matter and fully concurred with the findings and conclusions of the learned trial Court, in my view, it was not necessary for it to encumber the judgment with detailed discussion of the evidence.

Supreme Court, in case of Girja Nandini Devi & Ors. Vs. Bijendra Narain Choudhury reported in (AIR 1967 SC 1124), has observed that when the first Appellate Court is concurring with the findings and conclusions of the learned trial Court it is not necessary for it to discuss evidence in detail. The Court observed:

"It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."

It is clearly borne out from the finding of first Appellate Court that the respondents have already constructed the soak-pit in their own premises, therefore also no case for interference is made out.

In view thereof, the appeal is dismissed. The stay petition is also dismissed.