- (1.) This is Civil Second Appeal filed on behalf of the plaintiff-appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 18/01/1984 passed by the court of Additional District Judge No.1, Bharatpur by which, it has dismissed the appeal filed by the plaintiff-appellants and upheld the judgment and decree dated 29/07/1977 passed by the court of learned Additional Munsiff, Bharatpur by which, suit has been dismissed filed by the plaintiff.
(2.) The brief facts giving rise to this civil second appeal are that plaintiff-appellant has filed a suit for declaration and injunction as regards to the disputed roof of the shop and contention of the appellant was that shop of the defendant was a part of the house of the appellant. The main gate of the house, which is in the shape of a haveli, is in possession of the appellant and only through this gate, one can reach on the roof of the shop of the defendant. The roof is in possession of the plaintiff since long. The room has been constructed over the roof. It has been purchased by the plaintiff-appellant from Smt.Dropdi. He was having possessory title over the roof. Defendant has relied on the documents Ex.A1 to Ex.A3 but nothing has been said as regards to the fact that these documents are related to the disputed property and there cannot be any presumption that ownership of the roof would go along with the property. The court below has not weighed the evidence in right perspective and findings are perverse.
(3.) Per contra, the contention of the defendant respondent was that there is no question of possessory title as the property has been purchased in 1967 and the suit has been filed in 1972. There was no settled possession of the plaintiff. Documents, which could show the ownership of the plaintiff have not been submitted and hence, inference should have been taken against the appellant. Ex.A1 to Ex.A3 are the documents from which the disputed property has been purchased and no objection could be raised as regards to these documents. These documents are 30 years old and submitted by proper possession. Both the courts below are concurrent in finding and no substantial question of law has been raised. Hence, the appeal be dismissed.;