Rajasthan High Court
Bhagwan Das vs Rakesh And Ors on 22 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 220/2018
Bhagwan Das S/o Late Shri Tikaaram, R/o Town Roopvas, Tehsil
Roopvas Distt. Bharatpur Rajasthan
----Appellant-Plaintiff
Versus
1. Rakesh S/o Daalchand, R/o Town Roopvas, Tehsil Roopvas
Distt. Bharatpur.
2. Anil S/o Mangal, R/o Town Roopvas, Tehsil Roopvas Distt.
Bharatpur.
3. Partap Singh S/o Tikaaram, R/o Town Roopvas, Tehsil
Roopvas Distt. Bharatpur Raj.
4. Ramveer S/o Tikaaram, R/o Town Roopvas, Tehsil
Roopvas Distt. Bharatpur Raj.
5. Smt. Sunita Widow Of Rakesh, R/o Town Roopvas, Tehsil
Roopvas Distt. Bharatpur.
----Respondents-Defendants
For Appellant(s) : Mr. Jainendra Kumar Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
22/04/2022
1. Appellant-plaintiff (hereafter 'plaintiff') has filed this second
appeal under Section 100 of the Code of Civil Procedure assailing
the judgment dated 23.01.2018 passed by Additional District
Judge No.2, Bayana Camp Roopvas, District Bharatpur in Civil
Regular Appeal No.13/2017 affirming the judgment and decree
dated 02.07.2014 passed by Civil Judge (Junior Division) and
Judicial Magistrate, Roopvas, District Bharatpur in Civil Suit
(2 of 4) [CSA-220/2018]
No.16/2010 (titled as Bhagwan Das Vs. Rakesh & Ors.) dismissing
the plaintiff's suit for permanent injunction.
2. It appears from record that the appellant-plaintiff has filed a
simpliciter civil suit for permanent injunction in relation to the part
of land of Khasra No.1244/2 situated at Village Roopvas, District
Bharatpur claiming inter alia that plaintiff has ownership and
possession over the suit property and defendants want to
dispossess plaintiff, hence, defendants be restrained by way of
permanent injunction.
3. Defendants submitted their written statements denying
avertments of plaint and contended that plaintiff is neither owner
of the suit property nor he is having possession rather defendants
are having possession over the suit property and have big
foundation for construction thereof. Defendants contended that in
absence of possession of plaintiff, his simpliciter civil suit for
permanent injunction is not maintainable and deserves to be
dismissed.
4. Learned trial Court after framing issues and recording
evidence of both parties, decided issue Nos.1 and 2 against the
plaintiff concluding that plaintiff could not prove his ownership and
possession over the suit property. It was observed that in absence
of plaintiff's possession, his civil suit for permanent injunction is
not liable to succeed and the same was accordingly dismissed vide
judgment dated 02.07.2014.
5. Appellant-plaintiff has challenged the judgment and decree
dated 02.07.2014 by way of filing first appeal. The first appellate
court re-considered the pleadings and evidence and affirmed the
(3 of 4) [CSA-220/2018]
findings of the trial Court and dismissed the first appeal vide
judgment and decree dated 23.01.2018.
6. Learned counsel for appellant submits that findings of both
courts below are perverse and impugned decree, dismissing his
civil suit for permanent injunction, deserves to be quashed.
7. Heard learned counsel for appellant and perused the
impugned judgment and decree.
8. At the outset, it may be observed that the plaintiff instituted
a simpliciter civil suit for permanent injunction alleging his
ownership and possession but he remain failed to adduce
sufficient evidence to prove his ownership and possession.
9. Both Courts below on appreciation/re-appreciation of
pleadings and evidence of both parties have concluded that
plaintiff is neither owner nor has possession over the suit property.
Findings recorded by both courts below are based on evidence and
do not suffer from any perversity nor said to be suffered from
misreading/non-reading of evidence.
10. Hon'ble the Supreme Court 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] has categorically held that finding of fact is the
province of the trial Court and first appellate Court.
(4 of 4) [CSA-220/2018]
11. The High Court while exercising the powers under Section
100 CPC is not supposed to interfere with the findings of fact
unless and until the same are perverse nor it is expected that the
High Court should re-appreciate the evidence as a whole to draw a
different conclusion than recorded by two courts below. Since,
findings in relation to the possession are based on evidence and
have been recorded against the plaintiff as such the two courts
below have not committed any illegality/jurisdictional error in
dismissing the plaintiff's suit for permanent injunction.
12. This Court does not find any question of law much less
substantial question of law involved in the present second appeal.
Hence, the second appeal is devoid of merits and the same is
hereby dismissed.
13. Stay application or any other pending application(s), if any,
also stand(s) disposed of.
(SUDESH BANSAL),J
Sachin/11
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