Court No. - 37 Case :- SECOND APPEAL No. - 433 of 2025 Appellant :- Anil Kumar Advocate And 2 Others Respondent :- Sri Dayal And 13 Others Counsel for Appellant :- R.B. Pal Hon'ble Dinesh Pathak,J. 1. Heard learned counsel for the appellants at the admission stage and perused the memo of appeal along with its annexures. 2. Suit for permanent prohibitory injunction filed on behalf of the plaintiffs has concurrently been discarded by both the courts below. 3. It has been submitted that the trial court has dismissed the suit ex-parte without properly appreciating the evidence on record in right perspective. It is next submitted that ownership of the plaintiffs-appellants over plot number 98/1 measuring area 1.177 hectare is not disputed. Defendants-respondents are illegally trying to encroach upon the partial area of the aforesaid plot. The trial court as well as the appellate court has illegally dismissed the suit on the ground of maintainability. While filing the instant appeal, appellants have formulated following substantial questions of law, at the foot of the memo of appeal:- "1. Whether the court Amin report and Naksha Nazri it is proved that crops of wheat and mustard are cutting mark mentioned? 2. Whether the defendants respondents have not appear nor filed written statements the plaint case? 3. Whether the trial court without making issued dismissed the suit ex party? 4. Whether under section 41 (h) of Specific relief Act not applicable? 5. Whether the judgments and decree of courts below are vitiated and perverse beyond the evidence on record?" 3. Perusal of the record evinces that plaintiffs have filed suit claiming their right and title over the property in question i.e. plot number 98/1 measuring area 1.177 hectare shown by letters A, B, C, D at the foot of the plaint. It is stated in the plaint that agriculture field of the defendants is abutting the aforesaid plot towards the west side. Taking advantage of the adjoining plots, the defendants are trying to encroach upon the partial area of the aforesaid plot which is depicted by letters A, E, F, D at the foot of the plaint. Learned trial court, while passing the judgment dated 21.12.2022, has dismissed the suit as per provisions enunciated under Section 41(h) of Specific Relief Act on the ground that equally efficacious relief by way of demarcation proceeding is already availed and pending consideration before the court of Sub- Divisional Officer, Shikohabad, therefore, suit for permanent prohibitory injunction is not maintainable. It has been observed as well that defendants No. 8 & 9 are co-sharers in plot No. 98/1 along with the plaintiff. Finding returned by the trial court has been affirmed by the first appellate court. 4. I carefully scrutinized the record, which evince that the present plaintiffs are the co-owner/co-bhumidhar of plot no. 98/1. There is a dispute, prima facie, with respect to the boundary of two adjoining plots i.e. plot No. 98/1 belongs to the plaintiffs and the plots belongs to the contesting defendants. Plaintiffs have already resorted to equally efficacious remedy for demarcation of their plot under Section 24 of the UP Revenue Code, 2006. As per the statement made by the learned counsel for the appellants, said demarcation case No. 73 of 2001, under Section 24 of UP Revenue Code, 2006 has been decided by Sub-Divisional Officer (Judicial), Shikohabad, vide order dated 10.4.2023, whereby application under Section 24 of the UP Revenue Code, 2006 has been rejected. Having been aggrieved with the order dated 10.4.2023, the plaintiffs have already resorted to remedy to file a revision before learned Additional Commissioner, Agra, which is still pending consideration. 5. In this conspectus, as above, I do not find any justifiable ground to entertain the instant appeal against the concurrent findings of fact returned by both the courts below, who have dismissed the suit on the ground of maintainability. No substantial questions of law is made out in the instant matter as formulated by the appellants at the bottom of the instant appeal. There is nothing on the record to demonstrate any perversity or illegality in the orders under challenge. Equally efficacious alternative remedy is available to the plaintiffs and they have already resorted to said remedy for demarcation of plot, and the proceeding is still pending consideration at the revisional stage before Additional Commissioner, Agra. It is no more res integra that trial court is a court of fact and the first appellate court is a court of fact and law as well. However, second appeal cannot be entertained unless substantial question of law is made out. I do not find any substantial question of law in exercise of jurisdiction under Section 100 CPC. 6. Resultantly, instant second appeal, being misconceived and devoid of merits, is dismissed with no order as to the cost. Order Date :- 13.5.2025 vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad