1. The appellants have filed the instant appeal under Section 100 of CPC challenging judgment and decree dated 24.09.2012, passed by Second Additional District Judge, Jaura, District Morena, in Civil Appeal No.16-A of 2012 thereby affirming the judgment and decree dated 12.09.2011, passed by Civil Judge, Class-I, Jaura, District Morena, in Civil Suit No.8-A of 2010. Vide aforesaid judgment and decree, both the Courts have decreed the respondents' suit for permanent injunction.

The suit was initially filed by one Darshan Lal who expired during pendency of civil suit. He was substituted by his legal heirs who are respondent no.1 to 9. For convenience, the respondent no.1 to 9 are referred to as 'plaintiffs' and appellants are referred to as 'defendants' as per their respective status in the civil suit. The suit land, in this order, would mean the land bearing Survey No.830 (0.21 are) situated at village Khaneta, Tehsil Jaura, District Morena.

2. It is an admitted fact between the parties that the suit land is recorded as Govt. land and there exist a public road therein.

3. The plaintiffs filed the present suit for permanent injunction inter- alia pleading that the suit land consisting of public road is situated towards north side of their house and the main door of their house opens on the road. The villagers including plaintiffs use this road. It is alleged that in June' 2004, the defendants dumped up construction material over 38X70 sq. ft. of land in between plaintiffs' house and the public road. This obstructed plaintiffs' approach to the main road. It is further pleaded that the plaintiffs made a complaint to the Collector, however, no action was taken. On 20.07.2004, the defendants started digging the land for laying foundation of house. When the plaintiffs stopped them, the defendants started quarreling with them. Therefore, the present suit for permanent injunction as filed restraining the defendants from raising any construction over suit land and for removing the construction material dumped by them thereon.

4. The defendants filed written statement. Except the admitted fact, other plaint allegations were denied. It was averred that the defendants have dumped up construction material over their own land being part of Survey No.837 & 838 and the allegation that they are raising construction over Govt. land was denied. They also averred that the main door of the plaintiffs' house is towards south and not towards disputed public road. It was their allegation that under the garb of permanent injunction, the plaintiffs wants to encroach upon defendants' land. The defendants averred that the plaintiffs have no right to stop them from raising construction over their own land.

5. The learned Trial Court as well as first appellate court has decreed the suit holding that the defendants are raising construction over Govt. public road. It is also held that they have obstructed plaintiffs approach to the road, however, not over 60X40 sq. ft. but over 47 X 22 sq. ft. of land. The Courts have also held that the defendants have failed to prove that their house and land situated between the plaintiffs' house and public road. Challenging the judgment and decree passed by learned courts below, the present appeal has been filed.

6. The learned counsel for defendants could not dispute that the defendants have no right to raise any construction over Govt. land/road and to obstruct anybody's approach to this road. He however, challenged the judgment and decree passed by the Courts below on the ground that the application filed by them before learned appellate court under Order 26 Rule 9 CPC for spot inspection was illegally rejected. He also submitted that in view of provisions of Section 257(x) of M.P. Land Revenue Code, 1959, the suit was not maintainable and the remedy to the plaintiffs was to approach revenue authority under Section 131 of the Code.

7. The objection regarding maintainability of suit needs to be examined first. The provisions of Section 257(x) of the Code is apparently not attracted inasmuch as it bars the suit against any decision regarding reinstatement of a Bhumiswami improperly dispossessed and confinement in civil prison under Section 250. From the pleadings of party it is evident that the plaintiffs are not asking for their reinstatement in the capacity of Bhumiswami.

8. So far as Section 131 of the Code is concerned, the same provides for resolution of dispute by Tehsildar. However, such dispute should be as to whether any land can be used as route or not? In the case in hand, admittedly land bearing Survey No.830 is Govt. road. Therefore, provisions of Section 131 of the Code are also not attracted. Further, Section 257 of the Code does not bar a suit on account of availability of remedy under Section 131 of the Code. It is settled legal proposition that jurisdiction of a civil court cannot be barred unless so specifically provided. The objection regarding maintainability of suit raised by defendants' counsel is thus not acceptable and is accordingly rejected.

9. Before the Trial Court, a commission was issued under Order 26 Rule 9 CPC and report, dated 27.09.2004, was submitted by Tehsildar wherein it was reported that the defendants have encroached upon 47X22 sq. ft. of Survey No.830. The panchanama prepared during spot inspection was marked as Ex. P/2. Admittedly, the panchanama was prepared in presence of defendants and was signed by them without any objection. Pertinently, the plaintiffs raised objection to the commission report to which the defendants filed reply (Ex. P/3) and supported the commission report. Both the Courts have relied upon this commission report while decreeing the suit.

10. The learned counsel for defendants vehemently argued that merely because the defendants did not raise written objection to commission report would not deprive them of disputing the report. He argued that before the first appellate court, defendants filed application for issuing fresh commission which is illegally rejected by the Court.

11. Firstly, since the defendants did not raise any objection to the commission report before the Trial Court, give rise to a presumption that they were no aggrieved by the same. Even presuming for the sake of arguments that they have right to object to the commission, they can do so only based upon justified reasons. Merely for the sake of objecting to the report, no direction for issuance of fresh commission could have been issued by appellate court. The learned appellate court was, therefore, justified in rejecting the defendants' prayer for issuance of fresh commission.

12. The learned counsel for defendants also argued that the plaintiffs' have incorrectly stated that main door of their house opens at the disputed public road. As per his submission, the main door of plaintiffs' house is at the other side of the road. This submission of defendants' counsel, even if accepted, does not give any relief to defendants inasmuch as the defendants still do not get a right to obstruct public road.

13. The findings recorded by both the Courts are purely factual which are not open to interference by this Court under Section 100 of the CPC. The jurisdiction of this Court under the said provision is well defined and the Court can interfere in the matter only when the appeal involves a substantial question of law.

14. The Apex Court in the case of Municipal Committee Hoshiarpur Vs. Punjab State Electricity Board & others reported in (2010)13 SCC 216 has defined the jurisdiction of this Court in para 16 as under:

          "16. Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same. (Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai v. Bakshi Inderjit Singh; Manicka Poosali v. Anjalai Ammal; Sugani v. Rameshwar Das; Hero Vinoth v. Seshammal ; P. Chandrasekharan v. S. Kanakarajan ; Kashmir Singh v. Harnam Singh; V. Ramaswamy v. Ramachandran and Bhag Singh v. Jaskirat Singh."

15. Likewise in the case of Union of India Vs. Mohanlal & another, reported in (2016)3 SCC 78, the Apex Court held as under:-

          "9. I n Krishnan v. Backiam , it has been held at para 11 that : (SCC pp. 192-93) 11 . It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."

16. The appeal does not involve any substantial question of law for consideration of this Court. The judgment and decree passed by both the Courts below are accordingly affirmed. The appeal, therefore, fails and is dismissed at admission stage itself.