- (1.) THE appellant-defendant is aggrieved by the judgment dated 30.11.2011 passed by the Additional District Judge, Deedwana, whereby the learned Judge has allowed the appeal filed by the respondent Nos. 1 and 2, and has quashed and set aside the judgment dated 20.7.2010 passed by Civil Judge (Senior Division), Deedwana.
(2.) BRIEFLY, the facts of the case are that Govind Ram, and Chimna Ram, respondent Nos. 1 and 2, had filed a suit before the learned trial court, wherein they had claimed that they are resident of ward No. 24, where they have a particular plot, which has been under their possession for the last forty years. According to them, the said plot was allotted to Govind Ram on 22.1.1986 vide Title Deed No. 0328. Although the plot was co-jointly owned by the plaintiff and other brothers, they have divided it into their respective shares. While the western part has been given to Govind Ram, the respondent-plaintiff No.1, the eastern side has been given to Chimna Ram, the respondent-plaintiff No.2. According to them, on the southern portion given to Chimna Ram, there is an old toilet and bathroom, and they had fallen in disrepair. Therefore, they wanted to re- construct the said toilet and bathroom. According to them, due to political animosity, the members of the Municipal Council wanted to unnecessarily harass them. Therefore, a false complaint was submitted, and it was claimed that plaintiff-respondents have encroached upon the road belonging to the Municipal Council. On the basis of this complaint, the Municipal Council was threatening to demolish the said toilet and bathroom. Hence, the suit for permanent injunction was filed. The Municipal Council, (the respondent No.3 before this Court) submitted its written statement and claimed that the plaintiff had, indeed, encroached the road belonging to it. On the basis of the pleadings, the learned trial court framed four issues including the issue of relief. In order to support its case, the plaintiffs examined themselves as witnesses, and submitted certain documents. In turn, the Municipal Council examined a single witness. After going through the oral and documentary evidence, vide judgment dated 20.7.2010, the learned trial court had dismissed the suit. Aggrieved by the judgment dated 20.7.2010, the respondent Nos. 1 and 2 has filed an appeal before the learned Judge. Vide judgment dated 30.11.2011, the learned Judge allowed the appeal and quashed and set aside the judgment dated 20.7.2010 and decreed the suit in favour of the respondent- plaintiff. Hence, the second appeal before this Court. Mr. R.K.Charan, the learned counsel for the appellant, has vehemently contended that the learned Judge has failed to appreciate the evidence in proper perspective. According to him, the reasoning given by the learned trial court is more reasonable, more cogent and more logical, than the reasoning given by the learned Judge. Hence, the learned Judge was not justified in quashing and setting aside the judgment dated 20.7.2010. He has further contended that certain substantial questions of law arise in the present appeal. Heard the learned counsel for the appellant, and perused the impugned judgment.
(3.) A bare perusal of the judgment dated 20.7.2010, clearly reveals that the learned trial court has drawn inference from the site plain (Ex.2). According to the learned trial court, since Govind Ram (P.W.1) had clearly claimed that he had left five feet of his own land, and Bhagirath's father had also left part of his land for the purpose of the road. Therefore, the land within the possession of the plaintiffs should be forty-nine feet. However, according to Ex.2, the land shown in their possession is fifty-four feet. Thus, according to the learned Civil Judge obviously, the plaintiffs have encroached upon the public land. On the other hand, the learned Judge has not only considered Ex.2, but, most importantly, has also considered the evidence produced during the course of the trial. According to the witness produced by the Municipal Council, namely Arjun Ram (D.W.1), the width of the road is twelve feet. This fact he has admitted in his cross- examination. On this point, his testimony is further corroborated by the Commissioner's report, which clearly shows that the width of the road is twelve feet. Moreover, the learned Judge has noticed the fact that in another civil suit, civil suit No. 25/2006, titled as Uma Shanker Vs. Bhagirath & Ors., the appellant, Bhagirath, before this Court, had clearly admitted that the width of the road was twelve feet. If the witness on behalf of the Municipal Council clearly admits that the recognized width of the road is twelve feet, if the commissioner's report reveals that the road continues to be twelve feet wide, merely on conjectures and surmises based on a map produced by the plaintiffs, it cannot be held that the respondents Nos. 1 and 2 had encroached upon the public way. Therefore, the learned Judge was certainly justified in quashing and set aside the judgment dated 20.7.2010. Lastly, since the entire case is based on factual matrix, on the issue whether there was any encroachment or not, the civil second appeal does not raise any substantial question of law. ;