- (1.) This S.B. Civil second appeal has been filed by Smt.Sat Bai w/o Khudu Khan @ Khuda Bux , b/c Musalman r/o village Chhatrail , Jaisalmer against the judgment and decree dated 22.02.2007 passed by the District Judge, Jaisalmer in civil appeal (decree) No.09/2006. The brief facts giving rise to this second appeal are that the appellant plaintiff filed a suit for permanent and perpetual injunction against the respondent-defendants before the court of civil Judge (Sr.Division), Jaisalmer with the averments that her plot measuring 25 X 50 ft. is situated near Geeta Ashram, Jaisalmer. It is stated that her uncle Jumme Khan , through a registered gift deed dated 26.1.1997, had gifted the said plot to her. Jumme Khan had already obtained the permission for construction over the said plot after depositing a sum of Rs.28,125/ and Rs.235/- respectively and construction was raised over 24x48 ft. of the said plot. After taking possession, the plaintiff applied for permission to complete the construction but the defendants tried to demolish the construction and the defendants issued show cause notice to the plaintiff on 13.08.2002. The plaintiff appellant prayed for permanent and perpetual injunction against the defendants. The defendants in their written statement denied the legal regularization in favour of Jumme Khan and alleged that one Executive Officer Narayan Singh, illegally accepted the money and regularised the long possession in favour of Jumme Khan and also illegally passed the site plan and further averred that no gift can be made in favour of the plaintiff. After perusal of the pleadings of the parities, the learned trial court framed four issues:- "1. Whether plaintiff is entitled for permanent and perpetual injunction against the defendants over the land as prayed in para No.3 of the suit filed by the plaintiff Plaintiff. 2. Whether suit is not maintainable as stated in para No.1 to 4 of the written statement Defendants. 3. Whether defendants are entitled for costs of Rs.25,000/- from the plaintiff Defendants. 4. Relief ."
(2.) The plaintiff got examined 3 witnesses and exhibited 12 documents in support of the suit. In rebuttal, the defendants produced and examined 1 witness and exhibited 1 to 22-A documents . The learned trial court, vide its order dated 27.07.2006, decided issue No.1 in favour of the plaintiff and issue No.2 and 3 were decided against the defendants. Being aggrieved by the aforesaid order, the defendants filed regular first appeal before the learned District Judge, Jaisalmer who allowed the appeal in part, vide its judgment and decree dated 22.02.2007. Aggrieved by the said judgment and decree dated 22.02.2007 , the appellant has preferred this second appeal.'
(3.) Counsel for the appellant contended that the learned first appellate court has gravely erred in passing the judgment and decree dated 22.02.2007 by which the finding of the trial court has been reversed to some extent. The learned first appellate court has failed to consider the fact that after obtaining earlier permission, the appellant was doing the repair work. Learned counsel for the appellant further contended that the appellate court, while considering the finding regarding the construction against permission, failed to consider the evidence produced by the defendant respondent but only in casual manner disturbed the finding of the trial court on the basis of surmises and conjectures. Though no definite finding has been given by the learned first appellate court but it has been left open for the defendants to take step as per their mercy. Hence such type of finding is illegal, against law and is liable to be set aside. Counsel for the appellant also contended that the defendant failed to prove this fact that the plaintiff appellant raised any construction against the permission. Counsel further contended that the learned appellate court ordered in its judgment dated 22.02.2007 that any construction raised by the appellant, without the permission, can be removed the defendant respondent of this appeal. The learned counsel for the appellant proposed the following substantial questions of law :- " (i) Whether the learned first appellate court is justified in disturbing the finding on issues given by the learned trial court without foundation or evidence (ii) Whether the learned first appellate court exceeded its jurisdiction while giving liberty to the defendants for taking action against the plaintiff on the issue which was not pleaded , prayed or proved by the defendants (iii) Whether the learned first appellate court travelled beyond the subject matter and issue in question while passing the appellate decree by which the learned appellate court modified the decree of trial court to the extent of liberty for taking action against the plaintiff (iv) Any other substantial question of law which Hon'ble Court deems fit and proper in the facts and circumstances of this case may kindly be formulated.";