Govind Mathur, J. - (1.) TO assail validity, correctness and propriety of the judgment dated 22.8.2009 passed by learned District Judge, Jalore, affirming the judgment and decree dated 5.10.2005 passed by learned Additional Civil Judge (Senior Division), Jalore, this appeal is preferred.
(2.) BRIEFLY stated, facts of the case are that the plaintiff respondent preferred a suit for permanent injunction, mandatory injunction and to have possession on the land referred in para 1 of the plaint. As per plaintiff respondent the appellant defendants purchased a piece of land measuring 12' x 10' which was essentially a part of the plot purchased by the plaintiff and the defendants jointly. As per the plaintiff while raising construction the defendants utilised 11.8' of land in east and 12.7' land in west side and as such made an encroachment beyond the land measuring 10' x 12'. The fact of encroachment was denied by the defendants, thus, seven issues including entitlement for relief were settled by the trial court. The trial court also appointed a commissioner to inquire and measure the actual position of the construction made by the defendant appellants. The commissioner submitted his report and that is available on record as Ex.1. As per the commissioner's report the defendants exceeded the construction by 1.7' x 12'. The trial court while relying upon the commissioner's report and also the other relevant evidence gave a finding of fact regarding excess area occupied by the defendants. Accordingly the suit was decreed. Learned appellate court examined all the facts and affirmed the finding of fact give by the trial court. In second appeal the contention of counsel for the appellants is that no objection was raised by the plaintiff when the construction was going on for ground floor and only when the construction was made on first floor the objection was raised and as such the trial court should have deemed that the plaintiff had no claim on the excessive land if any utilised. It is also submitted that utilisation of excess land is on a different strip that was allotted to the appellant defendants by local authority.
(3.) ON examination of entire record I do not find any merit in the arguments advanced.;