Lrs Of Arjun Singh vs Vikram Kumar
2022 Latest Caselaw 5642 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Civil Second Appeal No. 78/2021

LR's of Arjun Singh 1 Sonu Kanwar W/o Late Sh. Arjun Singh, aged about 45 years, 2 Rinku Kanwar D/o Late Sh. Arjun Singh, aged about 28 years, 3 Varsha Kanwar D/o Late Sh. Arjun Singh, aged about 23 years, 4 Umaid Singh S/o Late Sh. Arjun Singh, aged about 26 years, 5 Mukesh Singh S/o Late Sh. Arjun Singh, aged about 22 years, 6 Swaroop Singh S/o Late Sh. Arjun Singh, aged about 25 years, All R/o Varaval, Tehsil Bali, District Pali.

----Appellants Versus

1. Vikram Kumar S/o Sonaram, aged about 39 years,

2. Vinod Kumar S/o Sonaram, aged about 21 years, Both are B/c Kumhaar, R/o Beda, Tehsil Bali, District Pali.

3. Vikram Kumar S/o Kanahiya Lal, aged about 46 years, B/ c Kandelwal, R/o Beda, Tehsil Bali, District Pali.

                                                                ----Respondents


For Appellant(s)         :     Mr. Ripudaman Singh
For Respondent(s)        :



         HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                Judgment

19/04/2022

The present civil second appeal has been preferred under

Section 100 of the Code of Civil Procedure, 1908 by the legal

representatives of original defendant No. 1 - Arjun Singh

(2 of 5) [CSA-78/2021]

(appellants herein) against impugned Judgment and Decree dated

08.04.2021 passed by the Additional District Judge, Bali, District

Pali in Civil Appeal Decree No. 33/2010 titled as "LR's of Arjun

Singh Vs. Vikram Kumar & ors." vide which first appeal preferred

by the appellants against the Judgment & Decree dated

28.05.2010 passed by the Civil Judge (Senior Division), Bali,

District Pali in Civil Original Suit No. 09/2003 titled as "Vikram

Kumar & anr. Vs. Arjun Singh & anr." decreeing the suit for

injunction filed by the plaintiffs (respondent Nos. 1 & 2 herein),

was dismissed.

The facts of the case in brief are that the plaintiffs - Vikram

Kumar and Vinod Kumar (respondent Nos. 1 & 2 herein) filed a

civil suit seeking prohibitory and mandatory injunction against the

original defendant No. 1 - Arjun Singh and Vikram Kumar s/o

Kanhaiya Lal, to the effect that plaintiffs had purchased a piece of

land on 19.02.2001. The plaintiffs constructed the shop on the

aforesaid land purchased by them and started business of cement

and grains. In the northern side of the above land, defendants

constructed cabins while encroaching upon the land of the Gram

Panchayat. On account of which, obstruction was caused to the

plaintiffs in their approach towards the way situated in North of

the land of the plaintiffs. The plaintiffs and the Gram Panchayat

tried their best to remove encroachment made by defendants on

the said land but of no avail.

In the written statement, the defendants averred that they

were running tea stall for last 25 years. The 'paan' stall was also

running for last more than 20 years. They could be evicted only

after filing the suit for eviction. They also averred that the land

belonged to the Gram Panchayat. After framing issues and

(3 of 5) [CSA-78/2021]

recording the evidence, suit was decreed by the trial court.

Aggrieved with the judgment and decree of the trial court, legal

representatives of the original defendant No. 1 - Arjun Singh filed

the first appeal under Section 96 of C.P.C., which was also

dismissed vide Judgment and Decree dated 08.04.2021.

Aggrieved with both the judgments, this second appeal has been

filed by the appellants/defendants before this Court.

Heard learned counsel for the appellants on admission and

perused the record of the courts below.

Learned counsel for the appellants has submitted that in this

case, disputed property belonged to the Gram Panchayat,

however, the Gram Panchayat was not impleaded as party and in

absence of Gram Panchayat, decree could not be passed by the

trial court. He further submitted that proceedings initiated by the

Gram Panchayat to remove possession of the appellants treating it

as encroachment, was set aside by the S.D.M. The appellants also

approached the Gram Panchayat for issuance of patta of the

disputed land. He further submitted that the plaintiffs never used

the way towards northern side of their land. They did not have

any right to use the disputed land as a way. The land purchased

by the plaintiffs-respondents was encircled by constructing the

boundary. However, with the aim to remove old possession of the

appellants, opening towards northern side was made after

removing boundary wall by the plaintiffs, whereas, on account of

old possession for more than 25 years, a right was created in

favour of the appellants to retain the possession. The plaintiffs did

not have any right to create a new way towards northern side of

their land. He has further submitted that both the courts below

have failed to appreciate the evidence in right perspective, hence,

(4 of 5) [CSA-78/2021]

judgment and decree impugned passed by both the courts below

are not sustainable in the eyes of law on account of misconstruing

the evidence led by the parties. The suit was also barred by

limitation.

Having considered the contentions raised by learned counsel

for the appellants and after going through records and the

judgments impugned, following factual position emerges in the

present case :-

It is an admitted position that the appellant's

possession over disputed land has not created any right in

favour of the appellants over the subject land. The plea of

adverse possession has been correctly dealt with by the

first appellate court while deciding Issue No. 5. The

essential conditions for establishing adverse possession

over the land have not been pleaded in the written

statements.

As per provisions of law, one cannot claim himself as

owner over the government land on the basis of

possession, which is for a period of less than 30 years.

For adverse possession, it is necessary that the

possession should be peaceful and without any

interruption, whereas, in the present case, it is admitted

position that the Gram Panchayat initiated proceedings

against the appellants for removal of their encroachment.

Hence, possession of the defendants could not be termed

as uninterrupted.

It is also admitted position that the land in question

belongs to the Gram Panchayat and without impleading

(5 of 5) [CSA-78/2021]

the Gram Panchayat as party, appellants cannot claim

adverse possession over disputed land.

It is not in dispute that land in question is situated in

the northern side of the plaintiffs-respondent's land. It is

also not in dispute that the plaintiffs have established by

oral and documentary evidence that they have right for

opening towards northern side. It is immaterial whether

the plaintiffs constructed boundary wall on their land

without keeping opening towards northern side of their

property. Only on account of the fact that previously no

opening was kept towards northern side, the plaintiffs-

respondents do not loose their right to keep opening

towards northern side of their land.

There are concurrent findings of both the courts

below regarding factual position to the effect that

appellants-defendants have encroached upon the subject

land. They also failed to establish their right on the basis

of adverse possession.

In view of the above, this Court is of the opinion that both

the courts below did not commit any error in giving findings in

favour of the plaintiffs. There is no substantial question of law

involved in this second appeal for consideration by this Court.

Consequently, the present second appeal being devoid of any

merit, is not fit for admission, hence, is dismissed in limine.

(RAMESHWAR VYAS),J 35-Inder/-

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