Rajasthan High Court - Jodhpur

Abdul Javed vs Shravan Kumar on 27 April, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Civil Second Appeal No. 532/2011 Abdul Javed s/o. Abdul Ajeej, aged about 46 years, resident of - Village - Baliya, Tehsil - Deedwana, District - Nagaur.

-----Appellant-Plaintiff VERSUS Shravan Kumar s/o. Shri Ram Chandra, resident of - Deedwana.

-----Respondent-Defendant

For Appellant(s) : Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Mahendra Thanvi.

For Respondent(s)        :     Mr. C.R. Jakhar.



            HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

27/04/2021

This second appeal under Section 100 CPC is directed against

the judgment & decree dated 04.08.2011 passed by Additional

District Judge, Deedwana ('the first appellate court') affirming the

judgment & decree dated 28.08.2008 passed by Civil Judge (Sr.

Division), Deedwana ('the trial court'), whereby the suit filed by

the appellant-plaintiff, was dismissed.

The predecessor of plaintiff-Kailash Chandra filed a suit, inter

alia, with the submissions that a piece of land was purchased by

plaintiff's father in Village - Baliya, which his father Jugal Kishore

gifted to plaintiff-Kailash Chandra, which was indicated as CDEF in

the plan annexed to the plaint.

It was alleged that on the western side of the land, the

respondent has put an Almirah on the land of the way, started

hotel business, regarding which, complaints were made to the

(2 of 6) [CSA-532/2011]

Gram Panchayat, however, no action was taken. Subsequently, the

plaintiff came to know that the respondent has got issued a patta

of the land and obtained permission for construction, for which he

applied to the Gram Panchayat for supplying of the copies,

however, the same were not issued. It was alleged that on the

western side of the plaintiff's land, government road at a distance

of about 43.5 feet was situated and on account of construction of

hotel by the respondent on 30 X 15 feet land, he had grabbed land

of common way. It was prayed that the patta may be cancelled

and by way of permanent injunction, respondent be restrained

from raising any construction and whatever obstructions he has

raised, may be ordered to be removed.

The respondent-defendant filed written statement and denied

the plaint allegations. It was stated that the defendant was in

possession of the land for a long time and that he has obtained

patta from the Gram Panchayat, which was issued on the basis of

possession and that the land was not that of way. It was

contended that Gram Panchayat Baliya was a necessary party.

The plaintiff got the suit amended and sought relief of

declaring the patta as illegal.

On the pleadings of the parties, several issues were framed

by the trial court and the suit was decreed on 26.11.1990.

Feeling aggrieved, the defendant filed first appeal, which

came to be decided by the Additional District Judge, Deedwana on

16.03.2005 and the matter was remanded back to the trial court

to redecide the same.

Before the trial court on remand, the present appellant filed

an application under Order I, Rule 10 CPC submitting that he has

(3 of 6) [CSA-532/2011]

purchased the land from the plaintiff-Kailash Chandra and,

therefore, he may be impleaded as party, the trial court by its

order dated 11.07.2005 impleaded the present appellant as

plaintiff. The written statement was also allowed to be amended

as per direction of the appellate court on an application filed by

the defendant under Order VI, Rule 17 CPC.

The trial court after recording the evidence of the parties by

its impugned judgment dated 28.08.2008, dismissed the suit of

the plaintiff-appellant.

Feeling aggrieved, the appellant filed first appeal. The first

appellate court by its judgment and decree dated 04.08.2011,

dismissed the appeal filed by the appellant and affirmed the

judgment and decree dated 28.08.2008.

It is submitted by learned counsel for the appellant that both

the courts below gravely erred in law in deciding issue No.3

against the plaintiff by wrongly framing the same, as the same

was not based on the case of any of the parties. It was

emphasized that the defendant, was occupying the land, which

could not have been allotted by the Gram Panchayat and as such,

the two courts below fell in error in dismissing the suit and the

appeal filed by the appellant. It was submitted that the findings

recorded by both the courts below give rise to substantial question

of law and as such, the same deserves to be admitted.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that both the courts below have

concurrently held in favour of the appellant on the factual aspect

and as such, the same do not give rise to any substantial question

of law.

(4 of 6) [CSA-532/2011]

Further submissions were made that from the documents of

the predecessor of the plaintiff-Kailash Chandra filed as Exhibit-

A3, A4 and A6, it is apparent that the entire case sought to be

projected by the plaintiff, was totally baseless and as such, the

two courts below were justified in rejecting the suit as well as the

appeal and, consequently, the appeal deserves to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as record of the two courts below.

The trial court in its original judgment dated 26.11.1990,

decreed the suit. The first appellate court, while deciding the

appeal on 16.03.2005, inter alia, observed as under:-

"izLrqr ekeys esa ;g fcUnq vR;Ur gh egRoiw.kZ gS fd D;k izfroknh dks iapk;r }kjk tkjh iV~Vk izn'kZ ,7 }kjk csph xbZ Hkwfe jksM dh mDr lhek esa vkrh FkhA ;fn mDr 50 QhV dh lhek esa iV~Vk izn'kZ ,7 dh Hkwfe vofLFkr gS rks og iV~Vk fu;eksa ds fo:) gksxk] ftls fu;ekuqlkj fujLr fd;k tk ldrk gSA

----------------------------

gekjh jk; esa izfroknh dh iV~Vk'kqn fookfnr Hkwfe dks rc rd lM+d dh lhek dh Hkwfe ugha ekuk tk ldrk tc rd fd oknh ;g lkfcr ugha dj ns fd ;g iV~Vk lM+d ds e/; ls 50 QhV ds Hkhrj dh Hkwfe dk tkjh fd;k x;k gSA ;fn 50 QhV ds Hkhrj iV~Vk tkjh gksuk lkfcr gksrk gS rks ,sls iV~Vs dks lM+d dh Hkwfe ekurs gq, fujLr Hkh fd;k tk ldrk gSA ;ksX; v/khuLFk U;k;ky; us rudh la[;k 3 oknh ds fo:) fu.khZr djus ds mijkUr Hkh izfroknh ds gd esa tkjh iV~Vs dks fujLr dj fof/kd =qfV dh gSA vr% ek= blh vk/kkj ij ;ksX; v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; fujLr fd, tkus ;ksX; gSA rudh la[;k&3 dks lkfcr djus dk Hkkj oknh ij gS vkSj ;fn oknh bl rudh dks lkfcr ugha dj ikrk gS rks mldk nkok fujLr fd;k tk ldrk gSA ;ksX; v/khuLFk U;k;ky; us rudh la[;k&3 ds foospu ds nkSjku ;g Li"V ugha fd;k gS fd izfroknh dks tkjh iV~Vk jksM+ ds e/; ls 50 QhV ds vUrxZr fLFkr gSA izLrqr ekeys esa ;g fcUnq Hkh fopkj.kh; gS fd izfroknh dks iV~Vk tkjh djrs oDr jksM dh fLFkfr D;k Fkh\ Mkej jksM dc cuh bl fcUnq ckcr Hkh ;ksX; v/khuLFk U;k;ky; ds fuf'pr er dh vko';drk gSA bl izdj.k esa ;g Hkh ns[kuk gksxk fd izfroknh dks iV~Vk nsus ds ckn ;fn jksM dh fLFkfr esa Qsjcny gqvk gS] rks mldk izfroknh ds iV~Vs ij D;k izHkko iM+sxk\ ,slh fLFkfr esa mDr fcUnqvksa dks fu.khZr djus gsrq ekeyk ;ksX; v/khuLFk U;k;ky; dks izfrizsf"kr fd;k tkuk visf{kr gSA"

                          (5 of 6)                                    [CSA-532/2011]



     The   trial   court,    after     remand        in    its   judgment   dated

28.08.2008, came to a categorical conclusion based on the

documents (Exhibit - A3 and A4) that the predecessor of the

plaintiff himself in his application made to the Gram Panchayat

had indicated the distance of the road at 80 feet / 100 feet from

his land and as such, it could not be said that the defendant's land

fell within 50 feet of the middle of the road and as such, decided

the relevant issues against the plaintiff and the first appellate

court, reiterated the said finding.

The submissions made that the trial court has wrongly

framed issue No.3, cannot be countenanced as the issue No.3 was

framed based on the directions given by the first appellate court

while remanding the case and admittedly, the order of remand

was not challenged by the appellant, which is now not open to

challenge in view of the express provisions of Section 105(2) CPC.

A perusal of the documents, relied on by both the courts

below clearly depicts that the predecessor of the plaintiff Jugal

Kishore himself on an application made to Gram Panchayat on

02.04.1979 (Exhibit-A3), annexed map (Exhibit - A4), wherein the

distance of the road from the boundary was shown at 80 feet on

one end and 100 feet on another end from the road, which