Rama vs Jasa Ram
2021 Latest Caselaw 12787 Raj

(1 of 5) [CSA-40/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 40/2020

1. Rama S/o Sh. Padma, Aged About 60 Years, R/o Peeparla Ki Dhani, Tehsil Ahore, Distt. Jalore

2. Kesi W/o Sh. Padma, Aged About 56 Years, R/o Peeparla Ki Dhani, Tehsil Ahore, Distt. Jalore

3. Hema Ram @ Sanwlia S/o Sh. Rama, Aged About 34 Years, R/o Peeparla Ki Dhani, Tehsil Ahore, Distt. Jalore

----Appellants Versus

1. Jasa Ram S/o Sh. Padma, R/o Peeparla Ki Dhani, Tehsil Ahore, Distt. Jalore

2. Laxminarayan @ Lakhma Ram S/o Sh. Heeralal, R/o Muleva, Tehsil Ahore, Distt. Jalore

3. Chatraram S/o Sh. Bhoma, R/o Nimbala Ki Dhani, At Present Residing At Bhadrajun, Tehsil Ahore, Distt. Jalore

4. Jogaram S/o Sh. Tikma, R/o Khudasa, At Present Residing At Bhadrajun, Tehsil Ahore, Distt. Jalore

5. Chenaram S/o Sh. Galba, At Present Residing At Bhadrajun, Tehsil Ahore, Distt. Jalore

6. Seeta D/o Rama, R/o Peeparla Ki Dhani, Tehsil Ahore, Distt. Jalore

----Respondents

For Appellant(s) : Mr. Nitesh Mathur.

For Respondent(s)        :



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

16/08/2021

This appeal under Section 100 CPC is directed against

judgment and decree dated 21.1.2015 passed by Civil Judge (Sr.

Division), Jalore and judgment and decree dated 28.11.2019

passed by District Judge (Family Court), Jalore, whereby, the suit

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filed by respondent -Jasa Ram has been partly decreed and the

appeal filed by the appellants has been rejected, respectively.

The suit for partition, permanent injunction and possession

alongwith mesne profit for use and occupation was filed by the

plaintiff against Laxmi Narayan and the appellants inter alia with

the averments that plot of land at Bhadrajoon Ki Dhani was jointly

purchased by plaintiff and defendant No.1 on 27.4.1981; since the

date of purchase the plaintiff and defendant No.1 are in

possession of the plot, boundaries thereof were indicated in the

plaint, a patta dated 27.5.1996 was also issued in favour of the

plaintiff. It was claimed that after purchase of the plot, plaintiff

and defendant No.1 constructed six shops and one shop was

constructed at the back of shop No.5 and 6 alongwith a water tank

etc., the plot was not partitioned, both the parties have equal

share, the defendant No.2 was plaintiff's brother, defendant No.3

his sister-in-law, defendant No.4 his nephew and defendant No.5

his niece, who were not favourably inclined to the plaintiff.

Defendants No.2 to 8 were bent upon dispossessing the

plaintiff and, therefore, on 24.7.2002, an FIR was lodged and

challan was filed by the police, in which, it was held that the

possession was that of plaintiff. The defendant No.3 also lodged a

false FIR, in which, charge-sheet was filed and matter is pending.

The plaintiff filed suit for permanent injunction on 28.1.2004

before the Civil Judge (Jr. Division), Jalore, which was pending for

service of defendants, when plaintiff reached the disputed plot on

01.02.2004 on shop No.1 defendant No.3 had put lock, on shop

No.2 defendant No.6 was in possession, similarly on shop No.3

Jogaram and on shop No.6 Chaina Ram were in forceful

possession and the plaintiff was not permitted to enter the

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premises. It was alleged that defendants have trespassed over the

property and they have no legal right and, therefore, the plaintiff

be handed over possession.

Further allegations were made that defendant No.1 was

raising construction over the plot, for which, he had no right. It

was prayed that the suit be decreed, possession be handed over

to the plaintiff after partition by metes and bounds with defendant

No.1, injunction be granted against defendants and mesne profit

for use and occupation of the shops was sought.

Written statement was filed by defendants No.2 to 6 denying

the averments made in the plaint. It was claimed that the plot was

purchased by plaintiff's and defendant No.2's father - Padma as

Karta of the joint family from the income of the family and as

plaintiff alone was available in the village, only his name was

indicated, the plaintiff has alone not paid the consideration and as

such he was not entitled for half share, the property belongs to

the joint family, the plaintiff never remained in possession, the

same was in possession of the defendants, the shops were

constructed by the defendant No.1 and other defendants, the

property was partitioned by their father between them, whereby,

the plot was given to the defendant and plaintiff was given two

storey house.

Further objections were raised about the limitation,

pecuniary jurisdiction of the court and that suit for permanent

injunction without possession was not maintainable. The

defendant No.1 also resisted the suit.

Based on the averments of the parties, the trial court framed

as many as 14 issues. On behalf of the plaintiff, two witnesses i.e.

(4 of 5) [CSA-40/2020]

plaintiff himself and his father - Padma were examined. On behalf

of the defendants three witnesses were examined.

After hearing the parties, the trial court came to the

conclusion that defendant No.1 was in possession of half of the

plot and plaintiff himself accepted that defendant No.2 and others

were in possession of half of the plot. It was held based on patta

(Ex.3-A) that plot was purchased by the plaintiff, the fact about

construction of the shops by the plaintiff was held as not proved.

It was held that between the parties it was already decided by

competent court that the plot already stands partitioned between

defendant No.1 and the plaintiff, based on the statements of

plaintiff and defendant No.1's father, it was held that the plea of

partition sought to be raised by the defendant had no substance.

Ultimately based on the findings on various issues, the suit was

partly decreed against defendants No.2 to 6 and 8.

Feeling aggrieved, the appellants filed first appeal.

The first appellate court, after hearing the parties, reiterated

the findings recorded by the trial court and dismissed the appeal.

It is submitted by learned counsel for the appellant that the

two courts below fell in error in decreeing the suit and not

accepting the plea raised by the appellant regarding the property

in question being joint and the same having been partitioned and

defendant being in possession of the property pursuant to the said

partition and, therefore, the judgments impugned give rise to a

substantial question of law.

I have considered the submissions made by learned counsel

for the appellants and have perused the judgments passed by the

two courts below.

(5 of 5) [CSA-40/2020]

The trial court after thoroughly discussing the evidence,

which was led by the parties and specially the statement of Padma

- father of plaintiff and defendant No.2 came to the conclusion

that the suit property was indeed owned by the plaintiff in whose

name the documents stand and that the defendant No.2 and his

family were trespassers over the said plot of land.

The appellants failed to lead any cogent evidence to

substantiate the contention that the property was purchased out

of any joint funds and that there was partition in the family,

whereby, the suit plot came into their share. In absence of any

cogent evidence led in this regard and the fact that the sale deed

as well as the patta of the land in question stand in the name of

plaintiff, no fault can be found in the concurrent findings recorded

by the two courts below.

Learned counsel for the appellants failed to point out any

perversity in the concurrent findings of fact recorded by the two

courts below so as to give rise to any substantial question of law.

In view of the above discussion, there is no substance in the

appeal. The same is, therefore, dismissed.

(ARUN BHANSALI),J 17-Sumit/-

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