Court No. - 1 Case :- SECOND APPEAL No. - 66 of 2010 Petitioner :- Brij Nath Chaudhari Respondent :- Nageshwar Chaudhari Petitioner Counsel :- Shyam Krishna Respondent Counsel :- D.K. Pandey Hon'ble Rakesh Sharma,J.
Heard learned counsel for the parties.
This appeal has been filed by the defendant-appellant assailing the judgment
rendered by the Trial Court i.e. Civil Judge (J.D.), 1st, Ballia on 29.8.2008
and the judgment and order dated 23.9.2009 rendered by Additional District
Judge, Court No.4, Ballia, dismissing the appeal of the defendant.
Both the courts below i.e Trial Court and the first Appellate Court have
recorded findings of fact for issuing permanent injunction against the
appellant. Sufficient material and evidence is accepted regarding title and
possession and on the basis of material on record, both the courts below have
found that the property in dispute was stood on the northern side of a chak
road. The appellant was occupying the land on the Southern Side of the road.
The land was purchased by the respondent/plaintiff in the year 1986 and some
construction was raised. Both the courts below have found that the
appellant/defendant had tried to encroach upon the land of the respondent-
plaintiff crossing the chak roads. Nageshwar PW-1 and Laxman Yadav PW-2
have deposed before the court that defendant/appellant Brij Nath Chaudhari
had forcefully taken possession over the disputed land. The part of the
property has shown as 5-5-5. This also form part of the disputed property
along with 3-4-5-6-, shown on the foot of the plaint in the description clause
of the property. It is noteworthy that DW-1 Brij Nath has stated that the wall
was raised during course of the litigation. Both the courts below have relied
upon oral testimony of the witnesses and documentary evidence while writing
the findings, recorded conclusions against the defendant/appellant.
The plaintiff-respondent has succeeded in establishing that he has title over
the land and was in possession , which was on the northern side of the chak
road and was being transgressed by the defendant-appellant without any
reason. The suit was decreed and the appeal filed against the same has been
dismissed. Both the courts below have given detailed findings based on the
oral and documentary evidence.
In view of above, it is clear that both the courts below have recorded
concurrent findings of fact based on oral and documentary evidence and other
materials available on record. No substantial question of law arises to be
considered in this Second Appeal to persuade this Court to deal with the
matter. No ingredients or elements as required to be attracted under Section
100 of the Code of Civil Procedure are available in this case. This court has
also scrutinized this case in the light of the law laid down by the Hon’ble
Apex Court in the judgments reported in AIR 2008 SC 1749, Kashmir Singh
Vs. Harnam Singh and another, AIR 1999 SC 2213, Kondiba Dagadu
Kadam Vs. Savitribhai Sopan Gujar and Others and (1995) 6 SCC 213,
Kashibai W/O Lachiram and others and does not find any ingredients as
required under Section 100 of the Code of Civil Procedure are attracted in the
present case.
In view of the above, no substantial question of law arises to be considered.
Accordingly, the Second Appeal is dismissed.
Order Date :- 27.1.2010
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