HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 250/2015
Nagar Palika, Jhalawar Tehsil Jhalarapatan District Jhalawar,
Rajasthan.
----Defendant/Appellant
Versus
Chhitar Lal Son of Balu Ram, retired Kanongo R/o 81 Jawahar
Colony, Jhalawar District Jhalawar
----Plaintiff/Respondent
For Appellant(s) : Mr. Sumit Kumar Sharma for
Mr. Sandeep Sharma, Dy. Govt.
Counsel
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
02/05/2022
1. Learned counsel appearing for appellant, make a request to adjourn the appeal, however, the case reveals that the appeal was filed on 14.05.2015 and since then, counsel for appellant has asked adjournments many a times and the appeal is pending at the admission stage, hence the prayer, for adjournment without any justified ground, is declined.
2. Appellant-defendant-Nagar Palika, Jhalawar (during appeal converted as Nagar Parishad) has preferred this second appeal, invoking the jurisdiction of the High Court under Section 100 CPC assailing the judgment and decree dated 01.04.2015 passed in Civil Appeal No.25/2012 by the Court of Additional District Judge, Jhalawar, affirming the judgment and decree dated 09.10.2012 (Downloaded on 07/05/2022 at 08:41:42 PM) (2 of 6) [CSA-250/2015] passed in Civil Suit No.60/2009 by the Court of Additional Civil Judge (Senior Division), Jhalawar whereby and whereunder, following decree has been passed in favour of respondent-plaintiff and against the appellant-defendant:-
"फलतः वाद वादी ववरुद्ध प्रवतवादी दी सवीस्वीकार वस्वीकर किया िया जास्वीकर आदाश वदर किया िया जाता ह वस्वीक:-
(१) प्रवतवादी नगरपावलस्वीका स्वीक को िया जररर किया दी स ार कियी वनषाेधााजा पा पाबा पाबंेध वस्वीकर किया िया जाता ह वस्वीक वह वादी स्वीक को वववावदत भखं ख ा पाबंड सा पाबादखंल नहं स्वीकरा त ा अनर किय वस्वीकसी सा भी पाबादखंल नहं स्वीकरावा व् वादी स्वीक को दी गर कियी इजिया जािया जत तामीर अननसार वनमा् ण स्वीकार किय् स्वीकरना मे प्रवतवादी वस्वीकसी भी प्रस्वीकार वस्वीक पाबाेधा उा उतपनन नहं स्वीकरा । (२) खंरा् पक्षस्वीकारान अपना-अपना वहन स्वीकरा गा।
(३) वडक्री पररा तदननसार मनतुर्ती पाब वस्वीकर किया िया जावा। "
3. The relevant facts, which may be recapitulated from the record, are that the dispute is in relation to one plot having an area of 10X30 feet, situated at Jhalawar, which was allotted by the Nagar Palika, Jhalawar to respondent-plaintiff on 01.11.2002 and the registered document of sale was executed after receiving the sale consideration of Rs.63,300/-. Thereafter, it appears that the Nagar Palika, Jhalawar granted permission to plaintiff on 15.12.2004 to raise construction, however, when the plaintiff started construction, the Nagar Palika came to dismantle the same. At that juncture, plaintiff has filed a civil suit for permanent injunction on 27.07.2005.
4. Appellant-Nagar Palika submitted written statement contending therein that the plot in question falls within the area of 100 feet from the centre road of National Highway, hence the allotment/sale, made in favour of plaintiff, is void and further the permission for construction, granted to plaintiff, has been (Downloaded on 07/05/2022 at 08:41:42 PM) (3 of 6) [CSA-250/2015] cancelled by the Sub. Divisional Officer, Jhalawar vide its order dated 16.07.2005.
5. In view of the aforesaid rival claims of both parties in relation to the plot in question, issues were framed and evidence were recorded. Plaintiff, apart from adducing oral evidence, produced his document of title including the sale deed, map, sanction for permission and the resolution of the Nagar Palika to allot the plot in question to plaintiff along with certain photographs showing his construction from Exhibit-1 to Exhibit-15. In rebuttal, the Nagar Palika produced its one witness Sh.Kailash Chand Mali as DW.1 and produced certain documents, order of the S.D.O for cancelling the allotment and sanction granted to the plaintiff.
6. The trial court, on appreciation of respective pleadings and evidence adduced by both parties, came to the conclusion that the Nagar Palika has failed to show that plot in question falls the within the area of 100 feet from the centre of the National Highway. Accordingly the issue No.4 was decided against the Nagar Palika. The trial court observed that the plaintiff has produced his title document through which it stands proved that the plot in question was allotted/sold by the Nagar Palika against the sale consideration and further the sanction for construction was also accorded, then the concerned S.D.O does not have the jurisdiction and power to cancel the sale and the sanction that too without giving any opportunity of hearing to the plaintiff. The trial court further observed that once an immovable plot has been sold through registered document, the same can be cancelled only through filing a civil suit before the civil court. The trial court, on strength of evidence on record, observed that the plot in question is in actual possession of the plaintiff and he has raised some (Downloaded on 07/05/2022 at 08:41:42 PM) (4 of 6) [CSA-250/2015] construction thereon. In that view of factual matrix and legal proposition, the trial court decreed the plaintiff's suit and passed a decree for permanent injunction in favour of plaintiff as mentioned hereinabove.
7. Appellant-Nagar Palika assailed the judgment and decree dated 09.10.2012 by filing first appeal. Though, the first appeal was filed with some delay, however, after condoning the delay, the same was heard and considered on merits. The first appellate court re-considered the pleadings and evidence of both parties. The first appellate court also observed that the plot in question has been allotted/sold to plaintiff on 01.11.2002 by the Nagar Palika, Jhalawar and thereafter the sanction for construction was also granted. The first appellate court has further observed that the cancellation granted to plaintiff for construction in plot by the S.D.O vide order dated 16.07.2005 (Exhibit-A5), cannot be treated as lawful cancellation as for the purpose of cancellation of the registered sale deed, a civil suit could have been filed. Thus, the first appellate court concluded that registered sale deed/allotment made by the Nagar Palika in favour of plaintiff has not be cancelled in the eye of law and the same stands valid.
8. It has also come on record that although, the Nagar Palika took a defense that the plot in question falls within the area of 100 feet from the centre of the National Highway, however, it transpired that for making some beautification of the crossing and to build a memorial for martyrs, the Nagar Palika is inclined to dismantle the construction and dispossess plaintiff from the plot in question. Such stand of Nagar Palika, without acquiring the land allotted to the plaintiff, may not be held justified and permissible in law.
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9. Since, both courts below have concurrently observed that the plot in question was allotted/sold to plaintiff and he is having the actual possession and has raised construction after getting sanction by the Nagar Palika, such findings of fact are based on appreciation of evidence, this Court is not inclined to interfere in the same.
10. At the stage of second appeal while exercising the jurisdiction under Section 100 CPC, the High Court is not supposed to re-appreciate the evidence as a whole to draw a different conclusion than expressed by two courts below. The fact findings are the province of the trial court and the first appellate court which unless and until do not suffer from any perversity are not required to interfere with by the High Court under Section 100 CPC. Even if, the fact findings may be incorrect, the same cannot be disturbed when the same is based on appreciation of evidence.
11. The substantial questions of law as proposed by appellant- defendant are essentially questions of fact which requires reappreciation of evidence. Re-appreciation of evidence is not permissible within scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings of impugned judgments. None of the question of law, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held by Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] and catena of other judgments passed in case of Pakeerappa Rai Vs. (Downloaded on 07/05/2022 at 08:41:42 PM) (6 of 6) [CSA-250/2015] Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595].
12. In that view of matter, this second appeal is bereft of merits and having involvement of no substantial question of law, the same cannot be entertained and liable to be dismissed and is hereby dismissed. There is no order as to costs.
13. Stay application as well as other pending application(s), if any, also stand(s) disposed of.
14. Record of two courts be sent back.
(SUDESH BANSAL),J SACHIN/2 (Downloaded on 07/05/2022 at 08:41:42 PM) Powered by TCPDF (www.tcpdf.org)