Shankar Singh And Anr vs Nand Lal And Ors
2022 Latest Caselaw 3125 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 19/2010
1.     Shri Shankar Singh S/o Shri Man Singh Bhati, aged 80
       years, R/o Rabaria Mohalla, Shankar Nagar, Ajmer.
       1/1. Smt. Barji Devi Wife of late Shankar Singh aged 70
            years, R/o Rabaria Mohalla, Shankar Nagar, Ajmer.
       1/2. Shri Hament Bhati S/o of late Shankar Singh, R/o
           Rabaria Mohalla, Shankar Nagar, Ajmer.
       1/3. Shri Praveen Bhati S/of late Shankar Singh, R/o
            Rabaria Mohalla, Shankar Nagar, Ajmer.
       1/4. Shri Amit Bhati S/o of late Shankar Singh, R/o
            Rabaria Mohalla, Shankar Nagar, Ajmer.
       1/5. Smt. Mohani D/o late Shankar Singh, and wife of
            Shri Mahesh Haldhar, R/o Ring Road, Kanadiya,
            Indore (M.P.).
       1/6. Smt. Rajkumari D/o late Shankar Singh, and wife of
            Shri Anil Rathore, R/o Taygi Road, Dehradun.
       1/7. Smt. Meena D/o late Shankar Singh, and wife of Shri
            Kulari Pipria, R/o Ghandi Nagar, Madar, Ajmer.
       1/8. Smt. Parwati D/o late Shankar Singh, R/o Rabaria
            Mohalla, Shankar Nagar, Ajmer.
       1/9. Smt. Simmi D/o late Shankar Singh, R/o Rabaria
            Mohalla, Shankar Nagar, Ajmer.


 2.    Shri Lalit Bhati S/o Shri Shankar Singh Bhati, aged 50
       years, R/o Rabaria Mohalla, Shankar Nagar, Ajmer.
                                                  ----Appellants-Defendants
                                   Versus
1.     Shri Nandlal S/o Shri Sohan Lal, R/o 1469 K/30, Sunhari
       Colony, Rabaria Mohalla, Ajmer
                                                           Respondent-Plaintiff

2. Shri Kishanlal S/o Shri Sohan Lal, R/o 1469 K/30, Sunhari Colony, Rabaria Mohalla, Ajmer

---Performa-Respondents

For Appellant(s) : Mr. V.K. Mathur For Respondent(s) : Mr. Mukesh Dudi

HON'BLE MR. JUSTICE SUDESH BANSAL Order

(2 of 5) [CSA-19/2010]

18/04/2022

1. Appellants-defendants, by way of this second appeal, have

assailed the judgment and decree dated 13.04.2001 passed in

civil suit No.91/1986 by the Court of Civil Judge (J.D.), Ajmer

whereby and whereunder the following decree has been passed:-

"oknh dk okn fo:) izfroknh la0 1 o 2 e; [kpkZ fuEukuqlkj fMØh fd;k tkrk gS %& izfroknhx.k dks tfj, LFkk;h fu"ks/kkKk ikcan fd;k tkrk gS fd os okni= ds iSjk la0 2 o 5 esa of.kZr 30 QhV pkSM+s vke jkLrs esa fdlh izdkj dk dksbZ vfrØe.k ugha djsa ,oa mDr vke jkLrs ij Mkyh xbZ feV~Vh o iRFkj bR;kfn dks Hkh gVkoasA mijksDrkuqlkj ipkZ fMØh cuk;k tkosA"

2. Appellants challenged the said decree by way of filing first

appeal No.237/2008, the first appellate Court on re-appreciation

of evidence affirmed the decree and dismissing the first appeal

vide judgment dated 04.08.2009, hence against concurrent

findings, this second appeal has been filed.

3. Learned counsel for appellants has vehemently argued that

the disputed land in question is not land of way but it is a land of

House No.19/1344-A measuring 201.30 Sq. Meter, which was

purchased by defendants through registered sale deed dated

30.12.1985 (Exhibit-A/1). The two courts have committed

illegality and jurisdictional error in passing the decree for

permanent injunction against appellants in relation to their

purchased land treating the disputed land as way/road. The

counsel submits that thus, the judgment and decree are perverse

as such deserves to be quashed and set aside.

4. Heard learned counsel for appellants, perused the impugned

judgments and record.

5. From perusal of the record, it appears that it has come on

record that plaintiff and defendant No.3 purchased their respective

(3 of 5) [CSA-19/2010]

plots from one Heera Lal through registered sale deed dated

12.07.1968 and in that sale deed, between both pots a road of 30

fit wide was left. The sale deeds incorporate the factum of leaving

30 fit wide road to be used as way between both the plots.

6. Plaintiff instituted the present civil suit for permanent

injunction, when the defendant inclined to possess over this 30 fit

wide area left as way and wanted to raise construction.

Defendants, in their reply, contended that this disputed area of 30

fit wide, has been sold by the legal representative of Heera Lal to

the defendant No.2 through sale deed dated 30.12.1985. The copy

of sale deed dated 30.12.1985 was produced on record as Exhibit-

A/1. Since the present suit was a simplicitor for permanent

injunction, the trial court framed the issues in that tune and

because the defendants neither instituted any counter claim nor

instituted any independent civil suit for claiming their ownership

over the disputed plot on the basis of sale deed, hence the issue

of their ownership was considered within scope of rebuttal to the

main issue of permanent injunction. The trial court on appreciation

of evidence of both parties, found that the plot No.1344-A/19 is

recorded in the record of Nagar Parishad, Ajmer in the name of

Amar Singh and Moolchand. The defendants could not prove by

their evidence that the disputed land was purchased from them.

The defendant No.1 himself did not appear in the present suit to

depose his statement. In absence of defendants' evidence, the

evidence produced by plaintiffs supported with their sale deed

dated 12.07.1968 was found sufficient and the trial court found

that the disputed land was left for use as way/road between both

plots of the plaintif and defendant No.3. This appeal arises out of

(4 of 5) [CSA-19/2010]

the simplicitor suit for permanent injunction. The two courts below

have passed the decree for permanent injunction, accepting the

disputed land as way/road on the basis of evidence on record,

which is not found to be perverse more particularly, in absence of

any counter claim of the defendant as also lack of evidence to

prove their valid title. Findings of fact recorded by both courts

below are based on appreciation of the evidence on record. Since

defendants did not file any counter claim or separate suit claiming

their ownership rights on the basis of their sale deed dated

30.12.1985, this Court is not inclined to enter to adjudicate issue

of ownership of the defendant.

7. It is a trite law that while exercising the powers by High

Court under Section 100 CPC, re-appreciation of evidence for the

purpose of drawing a different conclusion other than recorded by

two courts of fact findings, is not permissible. The appellate court

found the first appeal to be devoid of merits. Consequently the

decree passed by the trial court was upheld by the appellate court.

Counsel for defendants has not been able to prove his case or to

point out any perversity or make out any substantial question of

law in respect of the judgment and decree passed by the trial

court as also the appellate court. The conclusion of the courts

below are based on findings of fact. The Hon'ble Supreme Court in

the 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.

(5 of 5) [CSA-19/2010]

Sohan Lal, [(2000)1 SCC 434] and State of Madhya Pradesh

Vs. Sabal Singh & Ors., [(2019)10 SCC 595] has held that the

concurrent findings of facts even if erroneous cannot be disturbed

by the High Court in exercise of the powers under Section 100

CPC. This proposition is well established. Findings of fact based on

appreciation of evidence are the province of the trial court and the

first appellate court. Further in case of Damodar Lal Vs. Sohan

Devi [(2016)3 SCC 78] the Apex Court held that even if finding

of fact is wrong, that by itself will not constitute a question of law.

The wring finding should stem out of a complete misreading of

evidence or it should be based only on conjectures and surmises.

The safest approach on perversity is the classic approach on the

reasonable man's inference on the facts. To him, if the conclusion

on the facts in evidence made by the court below is possible, there

is no perversity. If not, the findings is perverse. Inadequacy of

evidence or a different reading of evidence is not perversity.

8. There is concurrent findings of fact by two courts below duly

based on appreciation of evidence. The fact findings is the province

of the trial court and the first appellate court and the High Court

ordinarily should not interfere in the same. Since, out of concurrent

findings of fact, no substantial question of law involved in the second

appeal, the findings are neither based on the misreading/non-reading or

perverse, hence the second appeal is bereft of merits.

9. Accordingly, the second appeal is dismissed.

10. Stay application and any other pending application(s), if any,

stand(s) disposed of.

(SUDESH BANSAL),J

TN/134

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