Premlal vs Satya Narain

The instant civil second appeal is directed against the judgment and decree dated 18.01.2018 passed by learned Addl. District Judge No.2, Bhilwara in Civil Appeal No.13/2015, affirming the judgment and decree dated 23.01.2015 passed by learned Addl. Senior Civil Judge No.1, Bhilwara in Civil Original Suit No.03/2005 (96/2005).

Learned counsel for the appellant, vehemently and fervently urged that the question No.1 which is proposed by way of a substantial question of law in the memorandum of the appeal is sufficient for admission of the instant second appeal.

The question No.1 is reproduced herein below:-

"Whether the Courts below has substantially erred in law in deciding the issue No.1 against the appellant-plaintiff ignoring the oral evidence so produced ? on behalf of defendant-appellant?"

In reference to the above question of law, learned counsel for the appellant took the Court through the impugned judgments; and urged that the trial court did not advert to the oral evidence produced on behalf of the appellant-defendant and passed the impugned judgment and decree in total ignorance thereof and hence the impugned judgments and decree deserve to be set aside and the appeal should be admitted.

I have considered the submissions of learned counsel for the appellant-defendant and have gone through the impugned judgments and decree passed by learned courts below.

It may be stated here that the two civil courts of competent jurisdiction have recorded concurrent finding of facts against the appellant-defendant and in favour of respondent-plaintiff while decreeing the suit for declaration and permanent injunction and while rejecting the appeal preferred by the appellant-defendant.

On going through the trial court's judgment, I find that the trial court adverted, discussed and evaluated the evidence of all the witnesses examined on behalf of the parties in entirety and came to the only logical and plausible conclusion that the disputed Arazi No.1433 was entered in the name of the plaintiff. Although, as per the revenue record, the entry of the Arazi was made in form of Mustkilahala but the disputed Arazi was not in the form of a Nala and was rather being used by the plaintiff as a passage to access his other lands. The appellant-defendant admitted that he had obstructed the way by putting stones etc. in the Arazi No.1433.

In view of the above significant evidence and admitted facts noticeable from the trial court's and the appellate court's judgments, I am of the opinion that both the courts below appreciated and re-appreciated the evidence available on record in a just and apropos manner while decreeing the suit in favour of the respondent-plaintiff and while rejecting the appeal. The impugned judgments, ex-facie do not suffer from any infirmity whatsoever nor does the instant appeal involve any substantial questions of law. In this view of the matter, the appeal fails and is hereby rejected in limine.

Decree be prepared accordingly.