Rajasthan High Court
Ramkripal Pareek vs Smt Ayodhya Devi Pareek And Ors on 8 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 407/2016
Ramkripal Pareek S/o Late Shri Bhagwan Sahai Pareek, Plot No.
23, Shankar Colony, Naya Kheda, Ambabadi, Jaipur
----Appellant
Versus
1. Smt. Ayodhya Devi Pareek W/o Late Shri Bhagwan Sahai
Pareek, Village Rampura Dabdi, Post Jaitpura Tehsil Amer
Distt. Jaipur
2. Mahesh Pareek S/o Late Shri Bhagwan Sahai Pareek,
Village Rampura Dabdi, Post Jaitpura Tehsil Amer Distt.
Jaipur
3. Ramesh Pareek S/o Late Shri Bhagwan Sahai Pareek,
Village Rampura Dabdi, Post Jaitpura Tehsil Amer Distt.
Jaipur
4. Smt. Indubala Pareek W/o Shri Gopal Lal Pareek, Plot No.
131, Jp Colony, Path No.2, Sector 4, Vidyadhar Nagar,
Jaipur
----Respondents
For Appellant(s) : Mr. Rajesh Choudhary
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
08/04/2022
1. Appellant-plaintiff, by way of this appeal has assailed the
judgment and decree dated 10.10.2014 passed by Additional Civil
Judge (Junior Division) No.3, Jaipur Metropolitan in suit
No.325/2013 whereby his civil suit for permanent injunction was
dismissed, which has been affirmed by dismissing first appeal
No.06/14 vide judgment dated 28.04.2016 passed by Additional
District Judge No.10, Jaipur Metropolitan.
(2 of 5) [CSA-407/2016]
2. It appears from the record that the appellant-plaintiff has
filed a simpliciter suit for permanent injunction claiming inter alia
that suit property being plot No.23 situated at Ambawadi, Jaipur
was allotted in the name of his father- Late Sh. Bagwan Sahai
Pareek on 24.01.1980. In fact, plot was purchased in the name of
his father but actually he paid sale consideration and bored the
expenses in raising the construction. He alleged that the
respondent-defendant No.4 is wife of his deceased brother and
claims her 1/5th share in suit property, therefore, plaintiff filed the
present civil suit for permanent injunction seeking beseeching to
restrain respondent-defendant No.4 for not interfering in exclusive
use and occupation of plot in question.
3. Respondent-defendant No.4 filed written statement claiming
inter alia that plot in question was purchased out of precedes
derived from ancestral agricultural land and that too in the name
of father. After the death of father, the same devolves in equal
1/5th share among wife and four sons. Respondent No.4 is widow
of deceased son, hence, she has her 1/5th vested share in suit
property.
4. Respondent-defendant No.1 to 3, supported the plaintiff and
filed written statements accordingly.
5. The trial Court settled issues and recorded evidence of both
parties. It has come on record that plot was allotted in the name
of father Late Sh. Bagwan Sahay Pareek. The water connection
lies in the name of deceased husband of respondent No.4. It was
observed that since plaintiff and defendants are co-owner of suit
property, plaintiff's simpliciter suit for permanent injunction is not
maintainable. It was observed that plaintiff has neither filed a suit
(3 of 5) [CSA-407/2016]
for declaration claiming his absolute ownership nor has preferred a
civil suit for partition. Respondent-defendant No.4 is also one of
co-sharer, hence, no permanent injunction as prayed by plaintiff
against her can be granted. The first Appellate Court re-
considered the whole issue and observed that plaintiff's claim of
ownership over the said plot even by virtue of adverse possession
alleging his long and uninterrupted possession is not sustainable
in the present case. It was observed that it is a case where the
parties belong to one family and after death of father, all the
parties are co-sharers in suit property. Thus, the first appellate
Court concurred with the findings of judgment of the trial court
and dismissed the appeal vide judgment dated 28.04.2016.
6. Being aggrieved by the concurrent findings of fact, this
second appeal has been filed.
7. Heard counsel for appellant and perused the impugned
judgment.
8. This Court finds that both Courts below hae concurrently held
that a simpliciter suit for permanent injunction is not maintainable
in the present facts and circumstances, where the plaintiff is not
having absolute ownership over the plot in question. As per
evidence and material available on record, it stands undisputed
that suit plot was purchased in the name of father. Although, the
present suit does not require enquiry of title/ ownership being a
simpliciter suit for permanent injunction, however, in order to
assess the nature of possession of plaintiff, both Courts below
have examined that all parties are co-sharers of suit plot having
their respective 1/5th share of each. Both Courts have not
committed any illegality or jurisdictional error in declining to grant
(4 of 5) [CSA-407/2016]
a decree for permanent injunction, in a simpliciter suit for
permanent injunction without bringing any suit for declaration or
partition. The fact findings recorded by two Courts below are
logical and rational as also based on settled proposition of law
which need not to be interfered with within the scope of Section
100 CPC. There is no perversity in facts findings and the same are
do not suffer from any misreading/non-reading of evidence. Thus
no substantial question of law is involved in the present second
appeal. The substantial questions of law as proposed by appellant-
plaintiff are essentially questions of fact which requires
reappreciation of evidence. Reappreciation of evidence is not
permissible within scope of Section 100 of CPC, unless and until
there is some illegality or perversity in findings of impugned
judgments. None of the question of law, falls within purview of
substantial question of law. In order to exercise the scope of
Section 100 of CPC, involvement/formulation of substantial
question of law is sine qua non. Otherwise also, it is a case of
concurrent findings of facts even if erroneous cannot be disturbed
in exercise of powers under Section 100 CPC as has been held in
case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar
[(1999) 3 SCC 722] and catena of other judgments passed in
case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors.,
[(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa
& Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand,
[(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal,
[(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal
Singh & Ors., [(2019) 10 SCC 595]. Since no substantial
(5 of 5) [CSA-407/2016]
questions of law are involved in present appeal thus, same is not
liable to be entertained.
9. Accordingly, the second appeal is found to be without force
and same is hereby dismissed.
10. Stay application and all pending application(s), if any also
stand disposed of.
11. There is no order as to costs.
(SUDESH BANSAL),J
NITIN /1
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