Rajasthan High Court

Jagdish S/O Khetaran vs Baluram Kumawat S/O Shri Banwari ... on 1 February, 2021

Bench: Goverdhan Bardhar

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Second Appeal No. 206/2020

1.     Jagdish S/o Khetaran, Aged About 72 Years
2.     Rohtash S/o Jagdish, Aged About 42 Years,
       Both      R/o     Babai,       Tehsil       Khetri,         Dist.   Jhunjhunu.
       (Rajasthan)
                                                   ----Appellants / Defendants
                                      Versus
1.     Baluram Kumawat S/o Shri Banwari Lal, aged about 61
       years,
2.     Mohan Lal S/o Radhakrishan, Aged About 62 Years,
3.     Tek Chand Jangid S/o Jamal, Aged About 47 Years,


       All R/o Ward No.13, Babai, Tehsil Khetri, Dist. Jhunjhunu,
       Rajasthan.
                                                    ----Respondents / Plaintiffs

For Appellant(s) : Mr. J.P. Goyal, Sr. Adv assisted by Ms. Jyoti Swami For Respondent(s) : Mr. Ashish Kumar

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment/Order

01/02/2021

With the consent of learned counsel appearing for the

parties, the present second appeal is being heard for final disposal

at the admission stage.

Challenge in instant second appeal has been made to

the judgment and decree dated 20.6.2020 passed by the Court of

Additional District Judge, Khetri, Rajasthan (for short 'the first

appellate Court'), in Civil Regular Appeal No.12/2020, Baluram

Kumawat and Ors. vs. Jagdish and Anr., whereby the first

appellate Court while allowing the appeal filed by the respondents/

(2 of 5) [CSA-206/2020]

plaintiffs, quashed and set aside the judgment and decree dated

24.2.2020 passed by the Court of Civil Judge, Khetri, District

Jhunjhunu (Rajasthan) [for short 'trial Court'] for declaration,

permanent and mandatory injunction.

Facts of the case in nutshell are that the respondents-

plaintiffs (herein the 'plaintiffs') filed a representative suit before

the trial Court seeking declaration, permanent and mandatory

injunction inter alia on the grounds that in village Babai a way and

a chowk measuring 17 yards wide exist between the plots of

Radhakishan Mahajan, Gulab Rai and Shyam Sundar and villagers

are using it prior to their memories. On the occasion of marriages,

tents are installed and the people are using the said land as a way,

parking for the vehicles like jeep etc. When the plaintiff No.1

purchased the plot of Shyam Sundar on 22.07.1999 then there

was no disturbance of any person. 11,000 KW high tension line

was passing from there. In the lease deed issued to Shyam

Sundar there was a way of 17 yards wide left for high tension line

and the said land was being used for publicly as is being told by

the nearby villagers. After executing the sale deed, the plaintiff

No.1 constructed the house, started residing and also started to

use the way measuring 17 yards wide along-with other villagers.

The plaintiffs stated in para No.6 of the civil suit that on

09.10.2011 when he was in Mumbai, some thieves stolen the

registered sale deed and patta. A report to this effect was

submitted before the police on 11.10.2011 mentioning therein

that defendants-appellants (herein 'the defendants') put the

stones on the land in question when plaintiff No.1 was doing the

labour work in Mumbai. When nearby persons resisted, the

defendants started quarreling with them. After receiving the

(3 of 5) [CSA-206/2020]

information plaintiff No.1 came to Babai and met the defendants

but they asked the documents of land. Thereafter he (plaintiff

No.1) made a complaint to the District Collector and also made

telephonic calls but no action was taken by the administration. The

defendants submitted written statement of denial. On the basis of

pleadings of the parties the trial Court framed four issues. The

plaintiffs in oral evidence got recorded statements of three

witnesses and exhibited nine documents. The defendants in oral

evidence got recorded statements of three witnesses and

exhibited four documents. The trial Court vide judgment and

decree dated 24.02.2020 dismissed the suit filed by the plaintiffs.

The plaintiffs aggrieved and dissatisfied with the judgment and

decree dated 24.02.2020 preferred an appeal before the first

Appellate Court, which was allowed vide judgment and decree

dated 20.06.2020. The defendants aggrieved and dissatisfied with

the impugned judgment and decree passed by the first Appellate

Court, preferred instant second appeal before this Court.

Learned counsel for the defendants argued that the first

appellate Court has committed an error in reversing the judgment

and decree dated 24.2.2020 passed by the trial Court. In the

present matter the suit was filed by the plaintiffs in the

representative capacity whereas no public interest is involved. The

first appellate court reversed the findings on the basis of

documents which were not exhibited in the suit and subsequently

filed in appeal even after conclusion of arguments of both the

sides i.e. documents dated 20.12.2019 (20.12.2017) and

27.5.2020. The first appellate Court has committed an apparent

error on record and without any application allowed production of

additional documents on record under Order 41 Rule 27 CPC.

                                            (4 of 5)                  [CSA-206/2020]



           Learned     counsel       for    the       plaintiffs   supported   the

reasoning given by the first appellate court and argued that the

land in question belong to the Gram Panchayat, Babai. The public

nuisance, created on the public way by any person; whether it is

permanent or temporary one, can be removed at the instance of a

public man or a person whose house is situated adjoining the

public way, over which the construction has been made. The

defendants have made an encroachment over the land belonging

to the Gram Panchayat Babai and has raised construction over the

same. Thus, the suit filed by the plaintiffs cannot be thrown away

on this Count.

On perusal of the impugned judgment and decree dated

20.6.2020 passed by the first appellate court it is clear that the

first appellate court while quashing and setting aside the

impugned judgment and decree dated 24.2.2020 passed by the

trial Court, decreed the suit filed by the plaintiffs and directed the

defendants to remove kachha or puccka construction within two

months. If the defendants do not remove kaccha or puccka

construction within the aforesaid period, the Gram Panchayat

Babai shall remove such construction and if need so arise, may

take police assistance.

Indisputably, the first appellate Court has taken into

consideration the documents filed at the appellate stage even

without seeking permission to allow such documents to be

produced, whereas the Order 41 Rule 27(2) CPC provides that

where additional evidence is allowed to be produced by an

Appellate Court, the Court shall record the reasons for its

admission. Thus, it is clear that the first Appellate Court

committed an error in considering the documents produced at the

(5 of 5) [CSA-206/2020]

appellate stage without following the provision of Order 41 Rule 27

CPC. The impugned order dated 20.06.2020 passed by the first

Appellate Court reveals that the document which is not marked as

Exhibit, has been considered. The relevant portion reads ad-infra:-

dk;kZy; xzke iapk;r] cckbZ }kjk tkjh lwpuk tks fopkj.k U;k;ky; ds le{k oknhx.k ds jgs vf/koDrk Jh dSyk'k pUn 'kekZ dks xzke iapk;r }kjk miyC/k djkbZ xbZ gSA ;g lwpuk fnukad 20-12-2017 dh rkjh[k dh tkjh dh xbZ gSA gkykafd ;g nLrkost lk{; esa iznf'kZr ugha gqvk gS fdUrq bl nLrkost ds ek/;e ls ;g fu"d"kZ fudyrk gS fd oknxzLr Hkwfe fdl mi;ksx dh gSA mDr nLrkost ij ;g fooj.k vafdr gS%& ^^mDr [kkyh Hkwfe vke jkLrs dh Hkwfe gS] tks nksuksa rjQ ls nks eq[; lM+dksa dks tksMr+ h gSAa ;g vke jkLrk gSAa blfy, bldk iV~Vk tkjh ugha fd;k tk ldrkA**

The first Appellate Court without affording an opportunity to

the respondents-plaintiffs relied upon the above document which

amounts to an error apparent on the face of record.

In view of this fact, the second appeal filed by the

defendants-appellants is partly allowed. The impugned judgment

and decree dated 20.6.2020 passed by the Court of Additional

District Judge, Khetri in Civil Regular Appeal No.12/2020 is

quashed and set aside and the matter is remitted back to the first

Appellate Court to decide the appeal afresh in accordance with

law. If the respondents-plaintiffs file an application under Order 41

Rule 27 CPC, the first Appellate Court shall decide the same afresh

in accordance with law on merits and till final disposal of the

application, parties shall maintain status quo. Parties are directed

to appear before the First Appellate Court on 23.02.2021.

Registrar Judicial is directed to send back record of the case