Vijay Ratan vs Kundan Mal
2021 Latest Caselaw 13127 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 59/2021

1. Vijay Ratan S/o Late Madan Lal, Aged About 48 Years, Bhojlai Bas, Sujangarh, District Churu (Raj.).

2. Shobha W/o Tarachand D/o Late Madan Lal, Aged About 52 Years, Naya Bas, District Churu (Raj.).

----Appellants Versus Kundan Mal S/o Bodu Ram, R/o Bhojlai Bas, Sujangarh, District Churu (Raj.).

                                                                ----Respondent


For Appellant(s)         :     Mr. N.L.Joshi with
                               Mr. Kirti Pareek.
For Respondent(s)        :     Mr. Rishabh Handa for
                               Mr. Girish Joshi.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

26/08/2021

This appeal is directed against the judgment and decree

dated 17/2/2021 passed by the Addl. District Judge, Sujangarh,

whereby, the appeal filed by the appellants-plaintiffs against the

judgment & decree dated 20/1/2021 passed by the Civil Judge (Sr.

Div.), Sujangarh has been dismissed.

The suit was filed by mother of the appellants for ejectment

of the defendant from the land in question, possession and for

permanent injunction. During the pendency of the suit, the

appellants' mother died and they were taken on record.

It was inter alia claimed in the plaint that the plot in

question based on a registered sale deed dated 19/6/1968 was in

possession and occupation of the plaintiff. On the western side of

(2 of 4) [CSA-59/2021]

the plot, land of defendant was situated. It was averred that on

23/12/2015, the defendant, in the absence of plaintiff, raised wall

and has trespassed over the land belonging to the plaintiff. It was

claimed that the defendant was in possession of the plaintiff's land

ad measuring about 17'x60' on one side and 13'x60' on the other

side.

Further submissions were made that when the defendant

was told to remove the wall, he avoided the same and then

started raising construction, which was indicated as the cause of

action. Based on the said averments, relief for permanent

injunction and possession was claimed.

Defendant filed written statement indicating that the

measurement of the plaintiff's plot was incorrect, the actual map

was indicated in the site report dated 9/1/2016. It was denied that

any encroachment has been made on the plaintiff's land. Reliance

was placed on the Commissioner's report and it was indicated that

in case the extent of encroachment, as alleged, is accepted, the

defendant would have been in possession of a bigger plot of land.

It was prayed that the suit be dismissed.

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

four issues. On behalf of the plaintiff, three witnesses were

examined and two documents were exhibited. On behalf of the

defendant, four witnesses were examined and six documents were

exhibited. After hearing the parties, the trial court came to the

conclusion that the Commissioner's report (Ex.A/4) was accepted

during evidence and none of the parties raised any objection, in

fact it was admitted by the plaintiff that the report was prepared

as per the site and the measurements indicated were accepted.

The trial court also came to the conclusion that from the

(3 of 4) [CSA-59/2021]

registered sale deed of the defendant (Ex.A/3), the total area of

the plot was 810 sq. yds. and the same was 60'x54', whereas, in

Commissioner's report it was found that the land of the defendant

was 59.4' and 59.6' i.e. both the sides of the plot were less than

60' and in case the alleged encroachment is added, the defendant

should have been in possession of larger plot of land and,

therefore, it cannot be said that the defendant has encroached on

any area as claimed by the plaintiff. Based on the said finding, the

trial court concluded that the plaintiff was not entitled for

possession of the land allegedly encroached by the defendant and

consequently dismissed the suit.

Feeling aggrieved, the appellants filed first appeal. The first

appellate court thoroughly considered the submissions made on

behalf of the parties and reiterated the findings recorded by the

trial court and dismissed the appeal.

It is submitted by learned counsel for the appellants that the

two courts below were not justified in dismissing the suit and

appeal. It was submitted that both the courts have relied on the

Commissioner's report for recording the findings in favour of the

defendant, which is not justified as the Commissioner's report is

not a substantive piece of evidence and on that count the

judgment impugned gives rise to a substantial question of law.

I have considered the submissions made by learned counsel

for the appellants and have perused the material available on

record.

A bare perusal of the judgments passed by the two courts

below indicates that the Commissioner's report was produced as

Ex.A/4 by the defendant, with which the plaintiff was confronted

and also submissions were made. Neither any objection was taken

(4 of 4) [CSA-59/2021]

to the Commissioner's report nor during the course of evidence

any objection was raised regarding the admissibility of the

Commissioner's report. In those circumstances, reliance placed by

the two courts below on the Commissioner's report cannot be

faulted.

Further, the courts below have not solely relied on the

Commissioner's report. The courts below have also found that the

appellants have in fact failed to establish the measurements of

their own plot of land and as such the plea regarding any

encroachment on their land itself was not found proved.

The findings recorded by the two courts below are essentially

findings of fact and learned counsel for the appellants failed to

point out any perversity in the said findings so as to give rise to

any substantial question of law.

Consequently, there is no substance in the appeal and the

same is, therefore, dismissed.

(ARUN BHANSALI),J

20-baweja/-

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