[2023/RJJD/010881] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 184/2022
1. Ratanlal S/o Shivlal Ji, Aged About 76 Years, R/o Naya Bazar, Bhatkarda, Sirohi, Tehsil And Distt. Sirohi.
2. Natwarlal S/o Rooparamji, Aged About 80 Years, R/o Sirohi, Tehsil And Distt. Sirohi.
----Appellants Versus Municipal Council, Sirohi, Through Commissioner, Municipal Council, Tehsil And Distt. Sirohi.
----Respondent
For Appellant(s) : Mr. Rajesh Shah
HON'BLE MS. JUSTICE REKHA BORANA
Order
19/04/2023
1. The present second appeal has been preferred against the judgment and decree dated 25.05.2022 passed by the District Judge, Sirohi in Civil First Appeal No.16/2018 whereby the judgment and decree dated 02.06.2018 passed by the Civil Judge, Sirohi in Civil Suit No.43/2015 rejecting the suit for permanent injunction as preferred by the plaintiffs has been affirmed. The suit was preferred by the plaintiffs for removal of encroachments made on the suit property.
2. The issue as framed by the learned trial Court was as under:-
"vk;k oknhx.k fo:} çfroknh bl çdkj dh LFkkbZ o vkKkid fu"ks/kkKk çkIr djus dk vf/kdkjh gS fd çfroknh okn ds lyaXu ofj"B uxj fu;kstd] tks/kiqj {ks=] tks/kiqj }kjk vuqeksfnr o Loh--r uD'kk vuqlkj HkkVdMk eksgYyk esa usg: ikdZ ds lkeus xyh ls gksdj ,yvkbZlh dk;kZy;] vEcsMdj lfdZy] fo/kqr foHkkx] u;kokl LVs.M tkus gsrq mijksä jkLrs ij ls reke vfrØe.k ,oa U;qlsUl dks vius [kpsZ ij gVkdj mijksä jkLrs dks [kqyokdj iwjh pkSMkbZ esa lQkbZ ,oa oknh o vketu ds vkokxeu gsrq lqpk: djs o U;wlsUl gVkosa rFkk Hkfo"; esa Hkh mijksä LFky ij fdlh çdkj dk voS/k dCtk o U;qlsUl dkfjr u fd;k tkosA"
3. Both the Courts below have specifically reached to the conclusion that firstly, the road alleged by the plaintiffs to be of (Downloaded on 25/04/2023 at 09:00:22 PM) [2023/RJJD/010881] (2 of 3) [CSA-184/2022] 50 ft. was existing on the site with the same width and therefore, the same had not been encroached upon. Secondly, it was an admitted case of the defendant itself that the temporary encroachments vide temporary tents were made by nomadic people and they themselves removed the said encroachments within certain point of time. The other encroachments had also been removed by the defendant Municipal Council and no encroachment or nuisance existed anymore on the site.
4. Learned counsel for the appellant submitted that the nuisance and the encroachment as alleged by the plaintiffs was a continuous process as the land in question was encroached by the nomadic people every time and then, therefore, the cause of action still survived and an injunction in the nature of perpetual injunction ought to have been granted in their favour.
5. A perusal of the record shows that no prayer for perpetual injunction was made and therefore no such relief could have been granted in favour of the plaintiffs by the Courts below.
6. Further, it is admitted on record that:
i) the plaintiffs did not plead the specific details of the persons who encroached upon the land;
ii) to whom the complaint, if any, regarding the said encroachment was made and on which date the complaints were made;
iii) the notice, as pleaded by the plaintiffs to be served upon the defendants through their lawyer, was also not exhibited in evidence;
iv) no photographs of the site were placed on record to show/prove any encroachment or nuisance;(Downloaded on 25/04/2023 at 09:00:22 PM)
[2023/RJJD/010881] (3 of 3) [CSA-184/2022]
v) Although pleaded that the neighbours had also complained of encroachments, no such neighbour or complaint was a part of the evidence.
7. In view of the above admitted facts, the Courts below reached to specific findings of fact. All the findings as reached by the Courts below are totally factual in nature and does not involve any question of law.
8. In view of the same, the concurrent findings of the Court below do not deserve to be interfered with. No substantial question of law arises in the present appeal.
9. The appeal is therefore, dismissed.
10. All the pending applications stand disposed of.
(REKHA BORANA),J 11-AbhishekS/-
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