Kan Singh, J.
1. This is a plaintiff's second appeal arising out of a suit for possession of an 'Obari' (small room) with an Ikdara (a small verandah) and for grant of a permanent, injunction restrainingthe defendants from using a projection (Raus).
2. There is a temple of Shri Sitaramji situated in Mohalla Babrapara inthe city of Kotah.the defendants Purshottam and Nathulal (here respondents) have a house adjacent to Shri Sitaramji's temple on the west side of the temple the idol of Shri Ramji is installed on the first floor of the temple and on the ground floor are the other apartments there is the disputed 'Obri' and the 'Ikdara' contiguous to the eastern wall of the defendants' house the plaintiff Onkarlal who claims to be the manager of the temple filed the suit on behalf of Chhipa community alleging that the defendants had opened a door in their house in the ikdara on 4-7-67 and had also opened two windows in the 'Obari' and had in this manner taken unlawful possession of both the Ikdara and the Obari the projection (Raus) is on the first floor and connectsthe temple with the residential quarters of the Pujari who brings Bhogmani from over the Raus to the deity. According to the plaintiff, the defendants had opened a door on their first floor so that they could go over the Raus and disturb the privacy of the Pujari Onkarlal sought the permission of the learned Civil Judge, Kota for filing the suit in representative capacity and then filed the suit the learned Civil Judice permitted the plaintiff Onkarlal to file the suit in representative capacity the defendants denied that they had taken unlawful possession of the two apartments or that the door in question was opened ever the Raus in the manner alleged or that the privacy of the Pujari was thereby invaded. Both the parties led their evidence.
3. The learned Civil Judge held that the Obari and the Ikdara in dispute belonged to the temple. He, however, came to the conclusion that the plaintiff was not successful in proving his claim regarding the door opening on the Raus. In the result, therefore, the learned Civil Judge decreed the plaintiff's suit for possession of the Obari and Ikdara, but dismissed it regarding the claim for injunction concerning the doer on the first floor opening on the Raus.
4. Aggrieved by the decree of the learned Civil Judge the defendants went up in appeal to the court of the District Judge the plaintiff Onkarlal, however, filed a cross objection regarding the door opening on the Raus. the learned District Judge reached the conclusion that the plaintiff was not successful in proving his claim on the Ikdara and the Obari. In the result, therefore, the learned District Judge reversed the decree of the Civil Judge regardingthe Obari and Ikdara. Regarding the cross objection filed by the plaintiff the learned Judge observed that there was no case for interference with the conclusion reached by the learned Civil Judge. Accordingly, he dismissed the cross objection.
5. It is in these circumstances that the plaintiff has come in second appeal.
6. I have heard counsel for the plaintiff appellant and have gone through the record of evidence. Whether the disputed Obari or Ikdara be longed to the plaintiff or the defendants is a question of fact and it is not open to learned Counsel to challenge the finding of fact arrived at by the lower appellate court, unless he shows that the finding of fact stands vitiated on account of any error of law committed by the lower appellate court It has to be noticed that the plaintiff had no title deeds or any other documentary evidence to support his claim which rested entirely on oral evidence the learned District Judge re appraised the evidence and reached the conclusion that there was no satisfactory evidence on the plaintiff's side either to prove that they were the owners of the property or that they had been in exclusive possession. He further noticed that where as the plaintiff's witnesses did not come from the neighbourhood, the defendant's witnesses were living in the neighbourhood. Faced with this situation learned Counsel for the plaintiff-appellant end devoured to show that the learned District Judge has mis direction himself in appreciating the evidence inasmuch as he has over locked an admission of the defendant Nathulal to the effect that the disputed property belonged to the temple. I have been taken through the statement of DW. 1 Nathulal. I may read the relevant portion of his statement:
;g xyr gS fd bl vksojh dk ekfyd iapk;r Nhiku gS eS ekfyd gwW A edku [kjkhnus dh jftLVh 1929 es gqbZ Fkh A esjs ikl jkftLVh ekStwn gS edku ftles vksojh bdnjk 'kjhd gS mldks iapk;r Nhiku us vEck yky dks cspk Fkk A rwfd bl c;ukes 1929 okys es tk;nkn dh rQlhy ugh gksus ls eSus is'k ugh fd;k gS Aml c;ukes es edku ds uhps fgLls dk dksbZ ftdz ugh gS&vksojh; ,dnjk uhps ds fgLls es gS ml c;ukes es jksl dk ftdz Hkh ugh gS A
I am afraid the above statement does not bear out that Nathulal had admitted that the disputed apartments belonged to the temple. Learned Counsel then switched on to an alternative submission that at any rate the learned District Judge should have drawn an adverse inference against the defendant on account of his non production of the sale deed in favour of Ambalal from adorn he had purchased the property. It is not evident whether the District Judge's attention was invited to this aspect of the matter. Be that as it way, the plaintiff has to succeed on his own strength and cannot rely much on the weakness of the defendants the plaintiff has admitted in his own statement that there were registers in which entries regarding the rent of the property were made they were, according to the plaintiff' himself, in possession of other Panchas there is apparently no reason why the plaintiff has not put on record those entries by summoning the concerning Panchas therefore, the above circumstance cannot, in my view, afford a sufficient reason for upsetting the finding of the learned District Judge on a pure question of fact I have been taken through the statements of all the 7 witnesses examined by the plaintiff & Laving read these statements I am far from satisfied that there is a case for interference with die conclusion reached by the learned District Judge. Even if the oral evidence is evenly balanced it will be no ground for upsetting the finding of fact in second appeal.
7. The next argument of the learned Counsel was that the statement of P.W. 3 Gopal Nai has been mis-read I have gone through his statement as well. Though in some respects the learned District Judge has over shot, it cannot be said that Gopal Nai's testimony is dependable Gopal Nai states that he was once a tenant in the Obari, but no rent note has been produced. He has admitted that he was not having any shop for carrying on the job of a barber. It seems that Gopal Nai has no fixed place for carrying on his vocation and moves about for his work therefore, I do not find much weight in the testimony of Gopal Nai.
8. In the result, I am not inclined to interfere with the finding of fact the appeal has thus no force and is hereby dismissed there will be no order as to costs.
9. Learned Counsel orally prayed for grant of leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, but as the finding under challenge was one of fact only, I am Dot inclined to grant the leave which is hereby refused.