Roop Chand vs Rajesh @ Kaliya And Anr
2021 Latest Caselaw 7278 Raj

(1 of 3) [CSA-82/2016]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 82/2016

Roop Chand S/o Ami Chand, By Cast Jain, Resident Of Punarwas Colony, Sagwada, Doongarpur.

----Appellant Versus

1. Rajesh @ Kaliya S/o Vitthal, By Cast Vagari, R/o Gamathwada, Tehsil Sagwada, District Doongarpur, Rajasthan.

2. Smt. Godawari W/o Rajesh @ Kaliya, By Cast Vagari, R/o Gamathwada, Tehsil Sagwada, District Doongarpur, Rajasthan.

----Respondents

For Appellant(s) : Mr. Kuldeep Mathur.

Mr. Lakshya Singh Udawat.

For Respondent(s)        :



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

15/03/2021

This appeal is directed against the judgment & decree dated

06.01.2015 passed by the Civil Judge (Sr. Division), Sagwada,

District - Doongarpur ('the trial court') and judgment & decree

dated 30.01.2016 passed by the Additional District Judge,

Sagwada, District - Doongarpur ('the first appellate court'),

whereby the suit filed by the appellant for permanent and

mandatory injunction was dismissed by the trial court and the

appeal was dismissed by the appellate court, respectively.

The suit was filed for permanent injunction in relation to a

plot for shop No. 193, size - 15 X 30 feet, said to have been

allotted on 01.06.1989.

(2 of 3) [CSA-82/2016]

The suit was resisted by the defendants.

The trial court framed four issues. On behalf of the plaintiff,

though, affidavits of four witnesses were produced, however, PW-3

Dinesh did not appear for cross-examination and seven documents

were exhibited. On behalf of the defendants, two witnesses were

examined and five documents were exhibited.

After hearing the parties, the trial court came to the

conclusion that the Patta (Exhibit-1) relied on by the plaintiff,

issued in name of the plaintiff on 01.06.1989, did not indicate any

boundaries and no material has been produced to identify the

location of the plot allotted and based on its finding on the said

aspect, dismissed the suit.

Feeling aggrieved, the appellant filed first appeal. The first

appellate court after hearing the parties, reiterated the finding

recorded by the trial court and dismissed the appeal.

Learned counsel for the appellant made submissions that the

first appellate court was not justified in dismissing the appeal

without dealing with the application filed by the appellant under

Order XLI, Rule 27 CPC and that the finding recorded by the two

courts below in the circumstances of the case is not justified.

Record of both the courts below was summoned.

A perusal of the record of the first appellate court, indicates

that no application under Order XLI, Rule 27 CPC was ever filed by

the appellant.

Learned counsel for the appellant based on the material

available in his record attempted to make submissions that such

application was filed, which submissions is against the record and

a perusal of the material in possession of the counsel also

indicates that the original application apparently prepared by the

(3 of 3) [CSA-82/2016]

counsel, remains in the record and has never been filed before the

first appellate court.

In view thereof, the submission made in this regard, has no

substance.

So far as the challenge laid down to the concurrent findings

of fact recorded by the two courts below is concerned, learned

counsel for the appellant failed to point out any perversity in the

findings recorded by the two courts below so as to give rise to any

substantial question of law.

In view of the above discussion, the appeal has no

substance, the same is, therefore, dismissed.

(ARUN BHANSALI),J

15-PKS/-

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