HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.790/2017
1. Kanhaiya S/o Ramkhiladi aged 51 years
2. Maniram S/o Ramkhiladi aged 45 years
3. Horilal S/o Ramkhiladi aged 42 years
All R/o Village Vilawati, Tehsil Kumher District Bharatpur
Rajasthan
----Appellants/defendants
Versus
Ratan Singh S/o Ramkhiladi, R/o Village Vilawati, Tehsil Kumher,
District Bharatpur
----Respondent
For Appellant(s) : Mr. B R Rana with Mr. H S Bikarwar HON'BLE MR. JUSTICE SUDESH BANSAL Judgment 01/11/2022
1. Appellants-defendants have preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 18.09.2017 passed in Civil Appeal No.78/2016 by the Court of Additional District Judge No.4 Bharatpur affirming the judgment and decree dated 04.12.2012 passed in Civil Suit No.266/2011 by the Court of Civil Judge (Sr. Division) Kumher Bharatpur whereby and whereunder the civil suit for permanent injunction has been decreed on merits in following terms:-
"वादी की ओर से प्रसरसर यह वादपत्र ्र ववरुद्ध प्र्र वरवादीगण िवादीगण बािवादीगण बरा स्ायी ्र वनिषेधाजा, इस आशय से ्र व डिकी ्र वकया ा जारा हत ्र वक, प्र्र वरवादीगण, ्र वववा्र वदर मकानि" द" ्र वा जसका ्र वववरण वादपत्र के पतरा स संखया-2 मे ्र वदया गया हत, उससे वादी को ा जिवादीगण बरनि िवादीगण बेदखल निहीं करे र्ा उसके उपयोग व (Downloaded on 04/11/2022 at 09:10:27 PM) (2 of 3) [CSA-790/2017] उपभोग मे वादी को कोई िवादीगण बाधा उतपननि निहीं करे । ख। खरा। पक्षकारानि अपनिा अपनिा वहनि करे गे।
आदे शानिससार ्र व डिकी प। खरा। िवादीगण बनिाया ा जावे।"
2. Having heard counsel for appellants and on perusal of impugned judgments, this Court finds that both courts below have recorded a fact finding that respondent-plaintiff is in possession of the disputed house and he should not be dispossessed without following due course of law. Appellants-defendants themselves do not dispute the possession of plaintiff. Their contention is that plaintiff' possession is unauthorized and according to the division made by their father, two houses are required to be divided. The impugned decree passed by courts below does not defeat the right of appellants to take the legal remedy on the basis of their contentions.
3. Considering the nature of impugned decree, when the possession of plaintiff over the suit property is not in dispute, this Court is of unequivocal opinion that the decree does not suffer from any illegality or jurisdictional error which calls for interference by this Court under Section 100 CPC. It may also be noticed that all three appellants and respondent are real brothers.
4. The Hon'ble Supreme Court in case of State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors (Downloaded on 04/11/2022 at 09:10:27 PM) (3 of 3) [CSA-790/2017] the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"
5. The Hon'ble Supreme Court in case C. Doddanarayan Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has observed that where two courts have reached a finding which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC.
6. As a result, the second appeal is bereft of merits being no involvement of any substantial question of law and accordingly, the same is hereby dismissed.
7. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J SAURABH/66 (Downloaded on 04/11/2022 at 09:10:27 PM) Powered by TCPDF (www.tcpdf.org)