Mohammed Ali @ Kallu Khan S/O Late ... vs Nizam S/O Late Shri Peer Khan
2021 Latest Caselaw 6701 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Second Appeal No.128/2020

Mohammed Ali @ Kallu Khan S/o Late Shakur, R/o Purani Sarai,
Purana Shahar, Dholpur.
                                                                  ----Appellant
                                   Versus
Nizam S/o Late Shri Peer Khan, R/o Purani Sarai, Purana Shahar,
Dholpur.
                                                                ----Respondent

For Appellant(s) : Mr. Prakash Chand Jain For Respondent(s) :

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

20/11/2021

The present second appeal has been preferred against the

judgment and decree passed by the appellate court in favour of

the plaintiff dated 05.02.2020 whereby the appeal was allowed of

the plaintiff-appellant and the appeal preferred by the present

defendant-appellant, was rejected.

Learned counsel submits that a substantial question of law is

involved in the present petition as the appellate court has failed to

decide the application under Order 41 Rule 27 CPC properly and

has failed to consider and interpret the documents and without

referring to the documents the appeal has been decided in favour

of the plaintiff-respondent.

I have considered the submissions and find that the following

issues were framed by the appellate court as under:-

(2 of 3) [CSA-128/2020]

"5- v/khuLFk U;k;ky; esa mHk; i{k ds vfHkopuksa ds vk/kkj ij fuEufyf[kr rudh;kr dk;e dh xbZ & 1- vk;k okni= esa of.kZr fookfnr LFky ch-lh-bZ-,Q lkoZtfud pkSd gS\

-------------oknh 2- vk;k okni= esa lyaXu utjh uD'ksa es of.kZr ,-ch-lh-Mh- oknh ds LokfeRo o vkf/kiR; dh pcwrjh gS] ftl ij ,Dl LFkku ij oknh dk njoktk gS] mDr laifÙk ij izfroknh dCtk djus ij vkeknk gS\

----oknh 3- vk;k izfroknh fof/kd izko/kkuksa ds vuqlkj fookfnr pcwrjh dks /oLr djkdj ukyh o njokts dks cUn djk ikus dk vf/kdkjh gS\

----izfroknh 4- vk;k okn dkj.k ds vHkko esa okn dkfcys [kkfjth gS\

----izfroknh 5- vk;k okn fe;kn oftZr gksus ds dkj.k dkfcys [kkfjth gS\

-----izfroknh 6- vk;k okn /kkjk 91 lhihlh dh vuqikyuk ds vHkko esa [kkfjt fd;s tkus ;ksX; gS\

-----izfroknh 7- vuqrks"k \"

Upon perusal of the aforesaid issues, it is apparent that all

the issues involved in the suit proceedings are essentially based

on question of fact which need to be determined and the evidence

which have been brought on record. After having considered the

evidence minutely, the learned court has proceeded to rule that

the present appellant-defendant does not have an exclusive right

for title on the common chawk, chabootra and has already given a

finding of fact that there was already existing a drain and a gate

which could not have been allowed to be damaged and broken by

the present appellant. These are findings of fact and there is no

perversity involved in interpretation of the evidence which have

come on record.

(3 of 3) [CSA-128/2020]

Keeping in view the limited scope as available under Section

100 CPC, since there is no substantial question of law found to be

involved in the present appeal, the present appeal is dismissed.

All pending applications, if any, stand disposed of.

(SANJEEV PRAKASH SHARMA),J

SAURABH/8

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