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Rampal v. Shrawan Kumar & Others - SECOND APPEAL No. 735 of 2006 [2006] RD-AH 15156 (1 September 2006)


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Court No. 24

Second Appeal No. 735 of 2006

Rampal Singh Vs. Shrawan Kumar & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the appellant.

The plaintiff's suit for permanent injunction has been dismissed by the trial court as well as the appellate court by the impugned judgment. The plaintiff appellant came with a case before the trial court that the Nagar Palika Council, the defendant No. 2 was proposing demolition on the part of his house, which was constructed way back in the year 1981.This construction was raised on the land purchased by the plaintiff from its original owner through registered sale deed. The defendant on the pretext of the existence of this construction over public pathway had attempted its demolition and encroachment. The suit was contested by the defendant stating that the plaintiff did purchase the portion of plot No. 441 (old) from the land holders and later on constructed house thereon. Subsequently in the year 1998 the plaintiff further extended his construction and encroached upon the public pathway to a considerable extent. This illegal construction, which amounts to encroachment on the public pathway, has been proposed for demolition by the authorities.

In support of the aforesaid case, the parties led their evidence and the courts below while interpreting and considering the entire aspect of the matter have found that the disputed constructions are nothing but encroachment over the public pathway and the plaintiff appellant did not have any right to claim and obtain a relief for permanent injunction in his favour. Accordingly, the suit was dismissed.

On the aforesaid facts and circumstances, it is evident that the whole matter in dispute between the parties has been decided by the courts below on the basis of evidence available on record and the entire discussion in the judgment is based on factual finding. There does not arise any substantial question of law for decision in this second appeal and the whole finding is based on facts and no legal question is at all available. Accordingly in such cases there is no scope of entertainment of the second appeal under Section 100 C.P.C. As such the appeal has absolutely no strength and is accordingly dismissed at the admission stage.




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