Rajasthan High Court
Rajwanti vs Jasoda And Others on 29 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.226/2016
Rajwanti W/o Hari Ram, Near Railway Station, Isarda, Teh.
Chauth Ka Barwara, Distt. Sawai Madhopur
----Appellant-Defendant
Versus
1. Jasoda W/o Hanuman, Near Railway Station, Isarda, Teh.
Chauth Ka Barwara, Distt. Sawai Madhopur.
...Respondent/Plaintiff
2. Narangi Wd/o Madho, Near Railway Station, Isarda, Teh.
Chauth Ka Barwara, Distt. Sawai Madhopur
3. Ganpat Singh Adopted S/o Narangi, Near Railway Station,
Isarda, Teh. Chauth Ka Barwara, Distt. Sawai Madhopur
4. Hari Ram S/o Kishan, Near Railway Station, Isarda, Teh.
Chauth Ka Barwara, Distt. Sawai Madhopur
----Proforma Respondents
For Appellant(s) : Mr. Anirudh Tyagi
For Respondent(s) : Mr. Rahul Tiwari
Mr. Khizer Iqbal Khan
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
29/04/2022
1. Appellant-defendant No.3, by way of this second appeal, has
assailed the judgment and decree dated 03.02.2016 passed in
appeal No.9/2013 by the Court of District Judge, Sawai Madhopur
(Raj.) affirming the judgment and decree dated 05.01.2013
passed in civil suit No.113/2007 by Court of Civil Judge (Junior
Division), Sawai Madhopur whereby and whereunder in the civil
suit for permanent injunction filed by respondent No.1-plaintiff
following decree has been passed:-
(2 of 7) [CSA-226/2016]
"परिणामस्वरूप ्वादादिया जसजसोादिा क की ओि स पश उक्त ्वाादि द्वरूद
प्रद प्रति्वाादितिवादीगण गण नािण नारंगतिवादी ्वगगिह क ्वास प्रति ससाई दगण नष निषेधािषेधाजा स्वतिवादीकाि दकया
जाकि प्रद प्रति्वाादितिवादीगण कजसो जरिय ससाई दगण नष निषेधािषेधाजा पापाबण नारंादि दकया जा प्रतिा हग दक,
प्रद प्रति्वाादितिवादीगण ्वादादिया कजसो ्वाादि पत्र क सास सण नारंलंलगगण न गण नन नकशा मक दादिें दिखाय
गय कादितिवादीमतिवादी आम िास प्रति (सड़क) 20 फफट जजसो उत्ति स ईसिादिा दश्वाड़
समपकप सड़क स ्वादादिया क ें दिख प्रति खेतों मक कादितिवादीमतिवादी स आ्वागमगण न हजसो प्रतिा िहा हग
औि ्व प्रतिपमागण न मक आ्वागमगण न हजसो िहा हग, उसकजसो प्रद प्रति्वाादितिवादीगण अ्वरूद गण नह्
किक गण न हतिवादी िास प्रति मक दकसतिवादी प्रकाि क की का काश प्रति किक गण न हतिवादी प्र ही प्रतसि आदादि
डाालकि उक्त िास प्रति कजसो अ्वरूद किक ए्वण नारं सादिग्व क की की भाण नारंद प्रति िास प्रति कजसो आम
िास प्रति क रूप मक ें दिखफलासा िें दिखक। मामल मक ें दिख खराप पक्षकािागण न अपगण ना-अपगण ना
्वहगण न किक ग। प खराप दडाक की इसतिवादी प्रकाि मफद प्रतिपपाब हजसो।"
2. It appears from the record, which is otherwise undisputed
fact that respondent No.1-plaintiff purchased land of 2 hectares
out of Khasra No.3647 in village Isarda, Sawai Madhopur through
registered sale deed dated 11.05.2004 (Exhibit-2) from one Smt.
Narangi (respondent No.2-defendant No.1). In this sale deed,
Smt. Narangi has transferred and conferred the right to have a
way of 20 ft. wide to plaintiff-purchaser in explicit terms and
detailing out the area as well as route of this way, for ingress-
egress to the purchased area of 2 hectares from the main isarda
road. Thereafter, the appellant purchased the portion of land from
Smt. Narangi vide a subsequent sale deed dated 07.09.2007
(Exhibit-3) and in her sale deed, seller-Smt. Narangi did not
disclose that through the land sold to appellant-Smt. Rajwanti,
any way of 20 ft. wide has been provided to the earlier purchaser
plaintiff-Smt. Jasoda. Both sale deeds, on appreciation of facts
mentioned therein and if read coupled with the site map appended
with the report of Court Commissioner, depict the factual position
much more clear that a 20 ft. wide way from isarda road to
(3 of 7) [CSA-226/2016]
purchased land of plaintiff is available at site starting from main
isarda road through and in between plot Nos.25-26 and passing
through the land of appellant reaching to the land of plaintiff. As
per factual matrix and as per pleadings and evidence of both
parties, the trial court has granted the decree for permanent
injunction in favour of respondent No.1-plaintiff in the manner
mentioned herein allowing plaintiff to have
unhindered/unobstructed way to her land and restrained the
defendant not to raise any obstruction in this way. The decree
passed by the trial court has been affirmed in the first appeal
hence against concurrent findings of fact this second appeal has
been filed.
3. Learned counsel for appellant, by way of his crisp and wise
arguments, submitted that plaintiff has not filed any suit for
declaration of this way. He submitted that even in the sale deed of
the plaintiff, though the way in question has been mentioned but
the same was subject to approval of conversion of the agricultural
land of seller-Smt. Narangi into residential. He further argued that
once the whole agricultural land of Smt. Narangi was not
converted and only an area of 5,000 square yards was converted,
therefore, mere mention of the way of 20 ft. through her
agricultural land does not confer any absolute right to plaintiff to
claim such way moreso when she has not prayed for any
declaration. He submitted that in the sale deed of appellant, there
is no mention of alternative availability of way to the plaintiff, from
her purchased land, appellant cannot be bound to provide 20 ft.
wide way to the plaintiff out of her land.
4. Heard counsel for appellant and perused the impugned
judgments and the record available before this Court.
(4 of 7) [CSA-226/2016]
5. At the first blush, the arguments raised by counsel for
appellant appears to be convincing however, on deed examination
of the record and more particularly the sale deed of plaintiff dated
11.05.2004, it appears that the conferment of the right to have a
way of 20 ft. wide to the plaintiff by the seller-Smt. Narangi has
not been alleged to be subject to conversion of the land. Appellant
and respondent No.1 both purchased their land from respondent
No.2-Smt. Narangi through two different sale deeds. The appellant
purchased her land from Smt. Narangi subsequent to the sale of
land to the plaintiff. The plaintiff's sale deed is of 11.05.2004 and
the appellant's sale deed is of 07.09.2007. It appears that prior to
the sale deed of appellant, Smt. Narangi, through her earlier sale
deed dated 11.05.2004, had already transferred her 2 hectare
land to respondent No.1-plaintiff, with a right to have access to
her land by 20 ft. wide way from isarda road, through and in
between plot Nos.25 & 26 and through her own agricultural land.
Thereafter Smt. Narangi sold her remaining land to appellant vide
sale deed dated 07.09.2007. Hence, even if, in the subsequent
sale deed dated 07.09.2007, if Smt. Narangi did not disclose
about giving the right of 20 ft. wide way through the sold land of
appellant to the plaintiff, the appellant cannot be assumed to
acquire better rights than the rights possessed by the seller-Smt.
Narangi on the date of execution of the sale deed dated
07.09.2007. Appellant-purchaser steps in shoe of respondent
No.2-seller and cannot claim better rights than seller. Once seller
has given a right of way to any other person, the purchaser is
bound to accept that right of way provided to other person. In that
view, the argument raised by counsel for appellant that the
appellant is not bound to give way to the plaintiff is not
(5 of 7) [CSA-226/2016]
acceptable. Further this way was subject to approval on
conversion of the land, as there is no such indication in the sale
deed. Oral evidence cannot supersede documentary evidence. The
perusal of both judgments shows that the trial court and first
appellate court have also considered this aspect and turned down
such objections which are right approach in the opinion of this
Court.
6. As far as the objection in relation to not filing of a civil suit
for declaration is concerned, this objection has also been dealt
with by the trial court. It has been observed that the plaintiff has
not come with a case seeking any easementary right but the
plaintiff's case, by way of filing a simpliciter suit for permanent
injunction, is claiming her right to have a way, which is mentioned
in her sale deed dated 11.05.2004 (Exhibit-2).
As has been discussed hereinabove that in the sale deed of
plaintiff, her right to have access through a 20 ft. wide way, has
clearly been mentioned. In such factual matrix and according to
pleadings and documents of the parties, the trial court observed
that the simpliciter suit for permanent injunction is maintainable
and even without asking for any declaration, the decree for
injunction has been granted in favour of respondent-plaintiff.
7. Since both courts have concurrently recorded a findings of
fact that a way of 20 ft. exists at site and the respondent-plaintiff
has right to have ingress/egress through that way, all the
defendants including the appellant-defendant No.3 have been
injuncted for not creating any obstruction/hindrance in that way.
The existence of way is a question of fact which can be
adjudicated on the basis of evidence on record. Both courts have
appreciated the evidence on record and thereafter have passed
(6 of 7) [CSA-226/2016]
the finding of fact. The findings of fact are the province of the trial
court and first appellate court and unless and until the same are
not perverse, the High Court while exercising its jurisdiction under
Section 100 CPC is not supposed to interfere in such fact findings.
8. Learned counsel for appellant, though prudently and wisely
argued but in his wise arguments could not point out any
perversity in the fact findings rather the fact findings are based on
evidence on record and do not suffer from any misreading/non-
reading of evidence. The substantial questions of law as proposed
by appellant are essentially questions of fact which requires re-
appreciation of evidence. Re-appreciation 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 questions 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 fact 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
questions of law are involved in present appeal thus, the same is
not liable to be entertained.
(7 of 7) [CSA-226/2016]
9. Accordingly, the second appeal is found to be without force
and the same is hereby dismissed. There is no order as to costs.
Stay application as well as any other pending application(s),
if any, stand(s) disposed of.
10. Record of both courts below be sent back.
(SUDESH BANSAL),J
SAURABH/79
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