Rajasthan High Court
Girraj Prasad And Another vs Murari Lal Through Lrs And Others on 13 December, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 3653/2014
1. Girraj Prasad S/o Shri Madan Mohan
2. Rajesh Kumar S/o Shri Madan Mohan
Both R/o Halwai Paysa Ward No. 6, Kumher Distt. Bharatpur
----Appellants/Defendants
Versus
1. Murari Lal S/o Shri Heera Lal (since deceased) through his
legal representatives:-
1/1. Keshri Chand S/o late Shri Murari Lal
1/2. Mukesh Kumar S/o late Shri Murari Lal (since deceased)
1/2/1. Rubi Jain D/o late Mukesh, Aged 20 years, (daughter)
1/2/2. Peeyush Jain S/o late Mukesh, aged about 18 years (son)
1/2/3. Sonam Jain D/o Late Mukesh, Aged about 16 years (son)
1/2/4. Deepak Jain S/o late Mukesh, Aged about 12 years, (son)
All R/o Halwai Paysa Ward No. 6, Kumher, Distt. Bharatpur
1/3. Dinesh Chand, S/o late Shri Murari Lal
1/4. Rishi Mohan S/o late Shri Murari Lal
R/o Halwai Paysa, Ward No. 6, Kumher, Distt. Bharatpur
1/5. Vimla W/o Shri Kedar Nath, D/o late Shri Murari Lal, R/o
Sher Singh Colony, Bharatpur
1/6. Kamla W/o Shri Prem Prakash D/o late Shri Murari Lal, R/o
Station Road, Bayana, Distt. Bharatpur
1/7. Snehlata D/o Late Shri Murari Lal, R/o Behind Old Laxman
Mandir, Bharatpur
----Plaintiffs/Respondents
2. Kailash Kumar S/o Shri Madan Lal (since deceased) awaited
25.7.2007 vide order dated 11.11.2014
3. Nagar Palika Kumher through Executive Officer, Nagar Palika,
Kumher, Distt. Bharatpur
Defendants/Proforma Respondents
For Appellant(s) : Mr. Jai Prakash Gupta, Advocate
For Respondent(s) : Mr. Bipin Gupta, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
13/12/2021
(2 of 4) [CMA-3653/2014]
This Civil Misc. Appeal has been filed by the appellants-
defendants (for short, 'the defendants') against the judgment
dated 31.10.2014 passed by Addl. District Judge No.2, Bharatpur
(for short, 'the appellate court') in Civil Regular Appeal No.
102/2004, whereby the appellate court allowed the appeal filed by
the respondents-plaintiffs (for short 'the plaintiffs'), set-aside the
judgment and decree dated 31.3.2004 passed by the trial court
and remanded the matter to the trial court with a direction to try
the issue no.2 afresh on the basis of evidence available on record
and decide the suit afresh within a month.
Facts of the case are that the original plaintiff Murari Lal
filed a suit for permanent injunction against the defendants
mentioning therein that he is in the ownership and possession of a
residential plot situated at Halwai Paysa, Kumher, Tehsil Kumher.
In the eastern side of the said property, there is a public way. The
said public way was being used for to and fro purposes. The suit
property had become dilapidated and the debris was lying on the
way. However, on 21.12.1999, the defendants with malafide
intention and fraudulently got sanctioned the land of the aforesaid
way in their name for the purpose of constructing a house from
Municipal Council, Kumher on the basis of forged agreement to
sale, for which neither the Gram Panchayat nor the Municipal
Council had any right to sell or to give permission to raise
construction.
The defendants put in appearance and filed written
statement. The defendants no. 1 to 3 submitted that the plaintiff
did not reside in the aforesaid property and reside in another
house. In the eastern side of the said property, no public way was
existed. The land in question was not the public way, but it was
(3 of 4) [CMA-3653/2014]
purchased by the father of the defendants no. 1 and 3 from the
defendant no.4 through agreement to sale dated 23.10.1965 and
obtained permission on 18.11.1965 to raise construction, but
construction could not be raised thereon. Subsequently on
21.12.1999, the defendants no. 1 to 3 again obtained the
permission for construction from defendant no.4. The plaintiff did
not come before the court with clean hands and concealed the
material facts.
The defendant no.4 also filed written statement
mentioning therein that in the municipality record, the disputed
land was not entered as a public way. It was also submitted that
no relief was sought in the plaint against the defendant no.4,
therefore, the suit be dismissed.
On the basis of pleadings of the parties, necessary
issues were framed.
After hearing the parties, the trial court vide its
judgment dated 31.3.2004 dismissed the plaintiff's suit. On an
appeal filed by the plaintiff, the Appellate Court vide its judgment
dated 31.10.2014 allowed the appeal and remanded the matter to
the trial court, as mentioned above. Hence, this Civil Misc. Appeal
has been filed.
Learned counsel for the defendants submits that
simplicitor suit for injunction was filed and issue no.2 was
subsumed in issue no.1, which was decided in detail by the trial
court, but the appellate court committed material illegality by
remanding the matter to the trial court to try the issue no.2
afresh, whereas there was sufficient evidence and material
available with the appellate court to decide the same and appeal
on merits.
(4 of 4) [CMA-3653/2014]
On the other hand, learned counsel for the respondents
fairly admits that sufficient evidence was available on record,
therefore, there was no necessity to remand the matter to the trial
court.
Heard. Considered.
Taking into consideration the facts and circumstances of
the case and in view of the fact that when the sufficient evidence
and material was available with the appellate court, there was no
necessity to remand the matter to the trial court and in view of
the provisions of Order 41 Rule 24 CPC, the remand order is not
legally sustainable.
For the aforesaid reasons, the appeal is allowed and the
judgment dated 31.10.2014 passed by the appellate court is
quashed and set-aside.
The appellate court is directed to decide the appeal
expeditiously.
(PRAKASH GUPTA),J
DK/17
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