HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 206/2020
1. Jagdish S/o Khetaran, Aged About 72 Years
2. Rohtash S/o Jagdish, Aged About 42 Years,
Both R/o Babai, Tehsil Khetri, Dist. Jhunjhunu.
(Rajasthan)
----Appellants / Defendants
Versus
1. Baluram Kumawat S/o Shri Banwari Lal, aged about 61
years,
2. Mohan Lal S/o Radhakrishan, Aged About 62 Years,
3. Tek Chand Jangid S/o Jamal, Aged About 47 Years,
All R/o Ward No.13, Babai, Tehsil Khetri, Dist. Jhunjhunu,
Rajasthan.
----Respondents / Plaintiffs
For Appellant(s) : Mr. J.P. Goyal, Sr. Adv assisted by Ms. Jyoti Swami For Respondent(s) : Mr. Ashish Kumar HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment/Order 01/02/2021 With the consent of learned counsel appearing for the parties, the present second appeal is being heard for final disposal at the admission stage.
Challenge in instant second appeal has been made to the judgment and decree dated 20.6.2020 passed by the Court of Additional District Judge, Khetri, Rajasthan (for short 'the first appellate Court'), in Civil Regular Appeal No.12/2020, Baluram Kumawat and Ors. vs. Jagdish and Anr., whereby the first appellate Court while allowing the appeal filed by the respondents/ (Downloaded on 08/02/2021 at 09:54:36 PM) (2 of 5) [CSA-206/2020] plaintiffs, quashed and set aside the judgment and decree dated 24.2.2020 passed by the Court of Civil Judge, Khetri, District Jhunjhunu (Rajasthan) [for short 'trial Court'] for declaration, permanent and mandatory injunction.
Facts of the case in nutshell are that the respondents- plaintiffs (herein the 'plaintiffs') filed a representative suit before the trial Court seeking declaration, permanent and mandatory injunction inter alia on the grounds that in village Babai a way and a chowk measuring 17 yards wide exist between the plots of Radhakishan Mahajan, Gulab Rai and Shyam Sundar and villagers are using it prior to their memories. On the occasion of marriages, tents are installed and the people are using the said land as a way, parking for the vehicles like jeep etc. When the plaintiff No.1 purchased the plot of Shyam Sundar on 22.07.1999 then there was no disturbance of any person. 11,000 KW high tension line was passing from there. In the lease deed issued to Shyam Sundar there was a way of 17 yards wide left for high tension line and the said land was being used for publicly as is being told by the nearby villagers. After executing the sale deed, the plaintiff No.1 constructed the house, started residing and also started to use the way measuring 17 yards wide along-with other villagers. The plaintiffs stated in para No.6 of the civil suit that on 09.10.2011 when he was in Mumbai, some thieves stolen the registered sale deed and patta. A report to this effect was submitted before the police on 11.10.2011 mentioning therein that defendants-appellants (herein 'the defendants') put the stones on the land in question when plaintiff No.1 was doing the labour work in Mumbai. When nearby persons resisted, the defendants started quarreling with them. After receiving the (Downloaded on 08/02/2021 at 09:54:36 PM) (3 of 5) [CSA-206/2020] information plaintiff No.1 came to Babai and met the defendants but they asked the documents of land. Thereafter he (plaintiff No.1) made a complaint to the District Collector and also made telephonic calls but no action was taken by the administration. The defendants submitted written statement of denial. On the basis of pleadings of the parties the trial Court framed four issues. The plaintiffs in oral evidence got recorded statements of three witnesses and exhibited nine documents. The defendants in oral evidence got recorded statements of three witnesses and exhibited four documents. The trial Court vide judgment and decree dated 24.02.2020 dismissed the suit filed by the plaintiffs. The plaintiffs aggrieved and dissatisfied with the judgment and decree dated 24.02.2020 preferred an appeal before the first Appellate Court, which was allowed vide judgment and decree dated 20.06.2020. The defendants aggrieved and dissatisfied with the impugned judgment and decree passed by the first Appellate Court, preferred instant second appeal before this Court.
Learned counsel for the defendants argued that the first appellate Court has committed an error in reversing the judgment and decree dated 24.2.2020 passed by the trial Court. In the present matter the suit was filed by the plaintiffs in the representative capacity whereas no public interest is involved. The first appellate court reversed the findings on the basis of documents which were not exhibited in the suit and subsequently filed in appeal even after conclusion of arguments of both the sides i.e. documents dated 20.12.2019 (20.12.2017) and 27.5.2020. The first appellate Court has committed an apparent error on record and without any application allowed production of additional documents on record under Order 41 Rule 27 CPC. (Downloaded on 08/02/2021 at 09:54:36 PM)
(4 of 5) [CSA-206/2020]
Learned counsel for the plaintiffs supported the
reasoning given by the first appellate court and argued that the land in question belong to the Gram Panchayat, Babai. The public nuisance, created on the public way by any person; whether it is permanent or temporary one, can be removed at the instance of a public man or a person whose house is situated adjoining the public way, over which the construction has been made. The defendants have made an encroachment over the land belonging to the Gram Panchayat Babai and has raised construction over the same. Thus, the suit filed by the plaintiffs cannot be thrown away on this Count.
On perusal of the impugned judgment and decree dated 20.6.2020 passed by the first appellate court it is clear that the first appellate court while quashing and setting aside the impugned judgment and decree dated 24.2.2020 passed by the trial Court, decreed the suit filed by the plaintiffs and directed the defendants to remove kachha or puccka construction within two months. If the defendants do not remove kaccha or puccka construction within the aforesaid period, the Gram Panchayat Babai shall remove such construction and if need so arise, may take police assistance.
Indisputably, the first appellate Court has taken into consideration the documents filed at the appellate stage even without seeking permission to allow such documents to be produced, whereas the Order 41 Rule 27(2) CPC provides that where additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission. Thus, it is clear that the first Appellate Court committed an error in considering the documents produced at the (Downloaded on 08/02/2021 at 09:54:36 PM) (5 of 5) [CSA-206/2020] appellate stage without following the provision of Order 41 Rule 27 CPC. The impugned order dated 20.06.2020 passed by the first Appellate Court reveals that the document which is not marked as Exhibit, has been considered. The relevant portion reads ad-infra:-
dk;kZy; xzke iapk;r] cckbZ }kjk tkjh lwpuk tks fopkj.k U;k;ky; ds le{k oknhx.k ds jgs vf/koDrk Jh dSyk'k pUn 'kekZ dks xzke iapk;r }kjk miyC/k djkbZ xbZ gSA ;g lwpuk fnukad 20-12-2017 dh rkjh[k dh tkjh dh xbZ gSA gkykafd ;g nLrkost lk{; esa iznf'kZr ugha gqvk gS fdUrq bl nLrkost ds ek/;e ls ;g fu"d"kZ fudyrk gS fd oknxzLr Hkwfe fdl mi;ksx dh gSA mDr nLrkost ij ;g fooj.k vafdr gS%& ^^mDr [kkyh Hkwfe vke jkLrs dh Hkwfe gS] tks nksuksa rjQ ls nks eq[; lM+dksa dks tksMr+ h gSAa ;g vke jkLrk gSAa blfy, bldk iV~Vk tkjh ugha fd;k tk ldrkA** The first Appellate Court without affording an opportunity to the respondents-plaintiffs relied upon the above document which amounts to an error apparent on the face of record.
In view of this fact, the second appeal filed by the defendants-appellants is partly allowed. The impugned judgment and decree dated 20.6.2020 passed by the Court of Additional District Judge, Khetri in Civil Regular Appeal No.12/2020 is quashed and set aside and the matter is remitted back to the first Appellate Court to decide the appeal afresh in accordance with law. If the respondents-plaintiffs file an application under Order 41 Rule 27 CPC, the first Appellate Court shall decide the same afresh in accordance with law on merits and till final disposal of the application, parties shall maintain status quo. Parties are directed to appear before the First Appellate Court on 23.02.2021.
Registrar Judicial is directed to send back record of the case to the First Appellate Court forthwith.
(GOVERDHAN BARDHAR),J Sharma NK/51 (Downloaded on 08/02/2021 at 09:54:36 PM) Powered by TCPDF (www.tcpdf.org)