Mohammad Rafiq, J. - (1.)THIS appeal has been preferred by the appellant Gopal Swami -defendant against the judgment of the Additional District Judge, Srimadhopur dt. 01.04.2013 whereby his appeal against the judgment of Additional Civil Judge (SD), Srimadhopur was dismissed. The learned Civil Judge, Srimadhopur decreed the suit filed by the plaintiff -respondent. The plaintiff -respondents Radhey Shyam Mathur and Anil Kumar Mathur filed a suit for perpetual injunction against the defendant -appellants contending therein that their pucca haveli No. 14 is situated at Ajitgarh township for last 50 years since the times of their ancestors, which opens on the public way. There is a narrow lane (gali) between the two havelis, leading to the main road towards the east. The plaintiffs have been always using that narrow lane/gali for access to their nohra. Besides that, the ventilators and nallas of plaintiffs and defendants also have their gates opening in that gali. The defendants are trying to encroach upon the land of gali thereby depriving the plaintiffs of their easementary right, therefore, prayer was made for perpetual injunction. The defendants in written statement, however, disputed the existence of nohra of the plaintiffs behind their haveli and also the existence of the narrow lane (gali). The defendants pleaded that their haveli was existing since the time of their ancestors. The defendants are using the disputed land for keeping their cattle. The defendants are also having access to their residential house through the doors opening on the southern side. Its eastern wall is made of limestone and western wall, which is towards the main road, was in dilapidated condition. The defendants had removed that wall and were constituting a cemented wall of bricks to prevent the animals and dogs from entering their house before filing the suit. Earlier there was a Chappar over the land in dispute and the defendants had put a tin shed for their catties and storage of fodder. The existence of gali and nalla was denied and thereby the easementary rights were also refused.
(2.)THE learned trial Court while deciding the issue No. 1 upheld the contention of the plaintiffs that narrow lane exist between the two havelis and that plaintiffs had the opening of their nallas, windows, ventilators and the gate of their house. The trial Court in recording that finding not only considered the statements of PW -1 Anil Kumar Mathur -plaintiff No. 2 and PW -2 Radhey Shyam Mathur -plaintiff No. 1, but also the statement of DW -1 Gopal Swami -defendant No. 2 and DW -2 Murlidhar Parikshit. DW -1 Gopal Swami in his statement admitted that the two havelis are not adjoining and there is no common wall between the two havelis. He sought to suggest that the gali was, in fact, situated behind the haveli of the plaintiffs and it was in this gali that plaintiffs have opening of windows, ventilators, gates etc., but denied the suggestion that the waste/running water of the nallas falls into this gali. He admitted that the plaintiffs used this gali for access to their (plaintiffs) nohra. On the southern side of their house, there is 10 -11 feet long and 4 feet wide gali. This gali is meant for reasonable use of plaintiffs. DW -2 Murlidhar Parikshit has admitted the existence of nohra of plaintiffs behind their haveli and has stated that a kachcha house was constructed on the southern side of the haveli since the times of their ancestors and its door opens on the main way. Gopal etc. used to keep their catties in this kachcha house and also keep fodder. This witness denied existence of gali between the two havelis and therefore there is no right of easementary. The learned trial Court appointed a Commissioner. The Commissioner report Ex. 1 is accompanied by Ex. Al, the site plan is on record. The trial Court also took note of the admission of DW -1 Gopal Swami that there is a gali in between the two havelis and that there is opening of the ventilators, windows, nallas and gates in that gali, though he denied the suggestion that waste/running water fall into this gali. DW -2 Murlidhar Parikshit, though has denied the existence of said gali, but in view of admission of DW -1 Gopal Swami, the defendant himself, the trial Court has found the existence of gali between the two havelis especially when this witness has admitted that the two havelis are not having a common wall. The trial Court therefore held that there is no better evidence than the defendant himself of existence of gali. There is no evidence produced that it was a private gali and once it is proved that it was a gali, it was meant to be used by both the neighbours. Raising construction into this gali would amount to obstruction in the right of way of the plaintiff to their nohra behind the haveli. The appellate Court has also again while considering the appeal of the defendant -appellants thoroughly examined the entire evidence and affirmed such finding. The evidence so recorded by both the Courts below is at best a finding on facts.
Learned counsel for the appellant has sought to argue that the learned Courts below have omitted to consider the report of the Commissioner and decreed the suit in favour of plaintiffs without considering the same. It was argued that PW -2 Radhey Shyam has stated that with regard to lodgement of FIR in the Police Station, but no such report has been produced. The learned Court below mechanically presumed the existence of gali. In this connection, the report of the Commissioner ought to have been looked into. Learned counsel further argued that no easementary rights of plaintiff arise regarding land in question. Ex. 1, the report of the Gram Panchayat produced by the plaintiff could not have been taken into consideration without there being any witness to prove such report.

(3.)IN my considered view, Ex. 1 has been proved by PW -1, Anil Kumar Mathur himself. The fact that plaintiff filed a first information report and did not produce the same before the trial Court, does not make any difference. Even the report of the Commissioner Ex. Al was at one place referred in para 7 while deciding issue No. 1 and 2 by the learned trial Court wherein it is mentioned that the gate which opened at place 'A' is meant for going towards South from the room and a sitting room is existing at place T. There is a gallery at place 'J' which goes upto the back side. The learned trial Court has mentioned that the concerned witnesses relating to this Commissioner report have been not produced and the defendants have not had any opportunity to cross examine them and therefore it has not finally taken into consideration. This cannot be said to cause any prejudice to the appellant. The appeal does not raise any question of less, much less any substantial question of law. The appeal is therefore dismissed.