Rajasthan High Court
Nijamuddin @ Nijjam vs Smt Gulshan And Ors on 25 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 140/2008
Nijamuddin @ Nijam S/o Shri Alladeen, House No. 52, Jalupura
Colony, Sansar Chandra Road, Jaipur (Rajasthan).
----Defendant-Appellant
Versus
1. Smt. Gulshan W/o Shri Suleman Plot No. 120, Jalupura,
Sansar Chandra Road, Jaipur (Rajasthan).
----Plaintiff-respondent
2. Maheshwari And Company, House No. A-10, Anaaj Mandi,
Chandpole-Bazar, Jaipur (Rajasthan).
3. Sandeep Electricals, Shop No. 320, Indra Bazar, Jaipur
(Rajasthan).
4. M/s. Kedar Trading Company, Shop No. 21, Jalupura
Colony, Vanasthali Marg, Jaipur (Rajasthan).
----Defendant-proforma respondents
For Appellant(s) : Ms. Anita Aggarwal with
Mr. Laxmikant
For Respondent(s) : Mr. P.C. Jain with
Mr. Zeeshan Khan for respondent
No.1
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
25/04/2022
1. In this second appeal, appellant-defendant No.1 has assailed
the judgment dated 13.03.2008 passed by Additional District
Judge No.2, Jaipur City, Jaipur in First Appeal No.58/2006,
affirming the judgment and decree dated 17.10.2006 passed by
Civil Judge (Junior Division), Jaipur City (West), Jaipur in Civil Suit
No.241/1996 whereby suit for permanent injunction has been
decreed in favour of respondent-plaintiff. The following decree has
been passed:-
(2 of 5) [CSA-140/2008]
"अतः वादीगण का वाद, बाबत सायी न निषिषेधाजा प्रनतवादीगण किषे
नवरुद्ध डध डििकडिक्री नकया या जाकर प्रनतवादी वादी सिवादी सं 1 को इवादी स आशय कडिक्री सायी
न निषिषेधाजा रू रूपाबन्द नकया या जाता जाता ह जाता है कडिक्री वजाता ह अ रूप नििषे नकरायिषेशकिरायेशुदा दो कमर दो कमरों किषे
अलावा खाली छत रूपर कोई न निमर्माण कायकार्य निजाता हय नहीं करिषे, वा डद निी वादी सिवादी सं 2 किषे
कबिषेशकिरायेशुदा कमरिषे किषे उ रूपयोग उ रूपभोग म में व वादी सी डसीढ़िय दो कमरों वादी सिषे आ नििषे - या जा नििषे म में कोई
रुकावट रूप जाता हैदा निजाता हय नहीं करिषे ततथा प्रनतवादी वादी सिवादी सं 2 ता 4 वादी सिषे उ निकडिक्री नकरायिषेशकिरायेशुदा
दक
किरायेशु ा निात का कब्ा प्राप्त निजाता हय नहीं करिषे और प्रनतवादी वादी सिवादी सं 2 ता 4 को इवादी स आशय
कडिक्री सायी न निषिषेधाजा किषे रूपाबिवादी संध नकया या जाता जाता ह जाता है कडिक्री विषे अ रूप नििषे नकरायिषेशकिरायेशुदा
रूपरिरवादी सर का कब्ा नब निा वा डद निी कडिक्री ललखखत अ निकिरायेशुमनत किषे प्रनतवादी वादी सिवादी सं 1 को
अन्तरिरत निजाता हय नहीं कर। और नि जाता ही नकवादी सी अन्य को वादी सम्भलायिषे।
खरर्मा मकिरायेशुकदमा दो नि दो कमरों रूपक्ष अ रूप निा-अ रूप निा वजाता ह नि कर मेंगिषे। "
2. From perusal of record, it transpires that dispute between
parties is in relation to front portion of Plot No.52 measuring
70.66 square yards situated at Jalupura Scheme, Jaipur. The plot
was allotted by the then UIT (Urban Development Trust) in the
name of plaintiff No.1-Hasam Khan. The plaintiff No.2 claimed that
plaintiff No.1- Hasam Khan transferred this portion to her by way
of registered gift deed dated 09.09.1996. During pendency of trial,
plaintiff No.1-Hasam Khan had passed away and plaintiff No.2
continued the civil suit. Plaintiffs filed a civil suit for permanent
injunction, stating that defendant No.1 (appellant herein) is tenant
in the first floor and defendant No.2, 3 and 4 are tenants in the
shops at ground floor. In counter, defendant No.1-appellant
submitted his written statement alleging inter alia that he had an
agreement to sale dated 27.08.1996 from plaintiff No.1 for the
whole portion including first floor and shops at ground floor and he
denied his status/possession on the first floor as tenant.
Appelllant-defendant No.1 also contended that defendant Nos.2, 3
and 4 are his tenants. The trial Court on the basis of rival
(3 of 5) [CSA-140/2008]
submissions proceeded with the trial of suit and finally passed a
decree for permanent injunction against appellant-defendant No.1
in the manner as mentioned hereinabove. The first appeal there
against has been dismissed.
3. During course of arguments, counsel for appellant submits
that defendant No.1 filed a civil suit for specific performance on
the basis of his agreement to sale dated 27.08.1996, although,
the civil suit was dismissed by the trial Court. However, the first
appeal No.146/2005 is pending before the High Court. Counsel for
appellant submits that in case, appellant succeeds in first appeal
and decree for specific performance is passed in his favour, the
impugned decree for permanent injunction would become
redundant, therefore, this second appeal be heard and decided
with the pending Civil First Appeal No.146/2005.
4. Counsel for respondent No.1-plaintiff submits that it is not in
dispute that suit property was allotted to plaintiff No.1. Plaintiff
No.1, by way of registered gift deed dated 09.09.1996, has gifted
the property to plaintiff No.2. Defendant No.1, earlier filed a civil
suit challenging the gift deed of plaintiff No.2, however, that civil
suit has been dismissed vide judgment dated 02.02.2005 passed
by the Court of Additional District Judge (Fast Track) No.5, Jaipur
City. Hence, the title of plaintiff No.2 (respondent No.1- Smt.
Gulshan herein) has become absolute. He admits that civil suit for
specific performance of contract, filed by appellant-defendant
No.2, is being pursued by him against plaintiff No.2 in the pending
first appeal No.146/2005, hence, appellant himself admits the title
of suit property vested in name of respondent No.1.
5. Having heard counsel for both parties, it is clear that in the
present second appeal, decree under question is only in relation to
(4 of 5) [CSA-140/2008]
permanent injunction. It has been informed that eviction suit filed
by respondent No.1-plaintiff against appellant has already been
dismissed vide judgment dated 11.09.2019. Since decree
impugned is only to the effect of passing permanent injunction,
which otherwise also do not adversely affect the rights of
appellant to pursue his first appeal No.146/2005 in relation to civil
suit for specific performance on merits, this Court finds that no
substantial question of law arises out of impugned judgments. It
may be observed that in case, appellant would succeed in the first
appeal No.146/2005 and decree for specific performance is passed
in his favour, the outcome/fate of decree for permanent injunction
impugned herein would become redundant automatically but as on
date there is no material available before this Court to interfere
with the impugned decree.
6. The findings recorded by two Courts below are findings of
fact and do not give rise to formulation of any substantial question
of law. In absence of involvement of any substantial question of
law, the second appeal cannot be entertained for exercising
jurisdiction under Section 100 CPC. 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 the scope of Section 100 of
CPC, unless and until there is some illegality or perversity in
findings. 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, which even if erroneous, cannot be
disturbed in exercise of powers under Section 100 CPC as has
(5 of 5) [CSA-140/2008]
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 questions of law are involved in present appeal thus,
same is not liable to be entertained.
7. Accordingly, the second appeal is found to be devoid of
merits and the same is hereby dismissed. There is no order as to
costs.
8. Stay application and any other pending application(s), if any,
also stand disposed of.
9. Record of the two Courts below be sent back forthwith.
(SUDESH BANSAL),J
NITIN /85
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