Rajasthan High Court
Mahaveer Prasad vs Shyamsundar on 29 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 416/2017
Mahaveer Prashad S/o Banshidhar, Bhankari, Teh. Kotputli, Distt.
Jaipur Raj.
----Appellant-defendant
Versus
Shyamsundar S/o Vrandvan, Bhankari, Teh. Kotputli, Distt.
Jaipur, Raj.
----Respondent-plaintiff
For Appellant(s) : Mr. Yogesh Pujari
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
29/04/2022
1. Appellant-defendant, by way of this second appeal, has
assailed the judgment and decree dated 21.03.2017 passed in
civil appeal No.39/2006 by the Court of Additional District judge,
Kotputli District, Jaipur whereby and whereunder following decree
has been passed:-
"अतः अपीलार्थी / वादी दाारा प्रप्रसतपत उक्त अपील अपील ववरुद प्र अपील वतवादी/
ारेप्रसपपोंडंट प्रसवीवीकाार वीकार की ी जावीकार अपील ववदान अान अधीनप्रसर नस्थ नीाीान अधीश दाारा पा्वारा पारारत
आलचच्ी अपील वनर् ी व अपील वडकार की अपील वदनािनां अपील ववीकत 12.07-2006 अपाप्रसत वीकार की ी जाती हह तरा
प्र अपील वतवादी/ ारेप्रसपपोंडंट वीकच ी ज्वारा पारारीे प्रसराीी अपील वनषेान अधाधाजा पाा पाबिनांद अपील ववीकीा ी जाता हह अपील ववीक
वह आम ाराप्रसता व चौवीक मं अपील ववीकसी प्रवीकाार वीकार की वीकच्ची प पकवीकार की तामीार नहीर नहीं वीकारं
व ले अपील वटन ीा ले अपील वटन वीका गडढाा नहीर नहीं ा पाबनाीे। तदनपरूप पचा् अपील वडकार की ा पाबनाीा
ी जावे। "
2. Learned counsel for appellant-defendant contends that
respondent-plaintiff filed civil suit No.10/1999 for permanent
injunction which was dismissed by the Court of Additional Civil
Judge (Jr. Division), Kotputli District Jaipur vide judgment dated
12.07.2006. The judgment passed by trial court is well reasoned
(2 of 3) [CSA-416/2017]
and based on appreciation of evidence however, on filing the first
appeal by respondent-plaintiff, the appellate court has reversed
the findings of trial court and passed the decree impugned herein.
3. Learned counsel for appellant has not disputed that the land
in question is the land of common and public way and chowk.
However, he submits that on public land of way and chowk,
appellant-defendant has an easementary right to dig a latrine pit
which is not detrimental to any right of plaintiff.
4. Having heard learned counsel for appellant, this Court finds
that respondent-plaintiff has not claimed any personal right and
he filed a civil suit for restraining the appellant-defendant not to
obstruct the public way and chowk either by raising any
construction or by digging a latrine pit etc. The appellate court,
has re-appreciate the pleadings and evidence of parties while
examining the findings of the trial court and then observed that
the trial court has not passed the findings according to the
respective rights claimed by parties on the land of public way and
chowk and therefore, appellate court reverse the findings and pass
the impugned decree.
5. The Supreme Court in case of Santosh Hazari Vs.
Purushottamn Tiwari [(2001) 3 SCC 179], State Bank of
India Vs. Emmsons International Limited [(2011) 12 SCC
174], Jagannath Vs. Arulappa [(2005) 12 SCC 303],
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [(1999)
3 SCC 722], Arumugham Vs. Sundarambal [JT 1994 (4) SC
464] and Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] has
observed that the first appellate court is well within its jurisdiction
to re-appreciate the evidence as a whole and to record its own
(3 of 3) [CSA-416/2017]
findings of fact by reversing the findings of the trial court if the
findings of the trial court are found to be perverse.
Since findings and judgment passed by first appellate court
is based on appreciation of pleadings and evidence as well as
deals with the rights of appellant-defendant, the same is found to
be well within parameters of law.
6. Hon'ble the Supreme Court in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has
held as under :-
"It is not within the domain of the High Court to
investigate the grounds on which the findings were
arrived at by the last Court of fact, being the first
appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses
accepted by the trial court in respect of credibility
but even where it has rejected the witnesses
accepted by the trial court, the same is no ground
for interference in second appeal when it is found
that the appellate court has given satisfactory
reasons for doing so."
7. Considering the nature of dispute and fact finding recorded
by first appellate court, this Court is not inclined to re-appreciate
the evidence and to interfere in the findings of the first appellate
court. Moreover, when there is no substantial question of law
involved in the second appeal.
8. Accordingly, the second appeal is found to be devoid of
merits and the same is hereby dismissed. The decree passed by
the first appellate court is confirmed. There is no order as to
costs.
Stay application as well as any other pending application(s),
if any, stand(s) disposed of.
9. Record of both courts below be sent back.
(SUDESH BANSAL),J
SAURABH/80
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