Rajasthan High Court

Kanchan And Others vs Ram Swaroop on 4 August, 2022

Bench: Sudesh Bansal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Second Appeal No. 688/2011
1.      Kanchan
2.      Munshiram
        Both S/o Kajoriram, R/o Nagal Charan, Teh. Mahua, Distt.
        Dausa
                                                        ----Appellant-Plaintiffs
                                    Versus
Ramswroop S/o Dauji, R/o Nagal Charan, Teh. Mahua, Distt.
Dausa
                                                   ----Respondent-Defendant

For Appellant(s)          :     Mr. Sharad Joshi
For Respondent(s)         :     Mr. Vijay Kumar Sharma


        HON'BLE MR. JUSTICE SUDESH BANSAL
                     Judgment
04/08/2022

1. Appellant-plaintiffs have filed this second appeal under

Section 100 CPC, feeling aggrieved by the judgment and decree

dated 10.03.2011 passed by Additional District Judge (Fast

Track), Mahwa, District Dausa in civil first appeal No.05/10

(27/2010) affirming the judgment and decree dated 08.04.2010

passed in Civil Suit No.16/2006 by Civil Judge (Jr. Division),

Mahwa, District Dausa, whereby and whereunder plaintiffs' civil

suit for mandatory and prohibitory injunction has been dismissed

on merits.

2. Heard learned counsel for both parties and perused impugned

judgments and material available on record.

3. It appears from the record that appellant-plaintiffs filed a civil

suit for mandatory and prohibitory injunction on 27.05.2006 in relation

to a way having 10' width and marked by blue and green colour in the

(2 of 7) [CSA-688/2011]

map appended with the plaint. Plaintiffs alleged in the plaint that in this

way the defendant has raised some unauthorized construction and has

put few stones obstructing the way, therefore a decree for mandatory

and prohibitory injunction was prayed for to remove such obstruction.

Plaintiffs further claimed that this way is available to access to their

house and agricultural land, and therefore the defendant be restrained

by prohibitory injunction not to create any hindrance/obstruction to use

this way by plaintiffs.

4. Respondent-defendant submitted written statement and denied

the claim of plaintiffs contending that at site there is no such way as

alleged by plaintiffs, and once the way in question is not available at

site, the plaint is wholly misconceived and deserves to be dismissed.

The defendant has also contended that the disputed land is part of

pasture land for which no suit for injunction can be instituted before

the civil court.

5. Learned trial court settled the issue and recorded evidence

adduced by both parties.

Learned trial court, while deciding the issue regarding existence

of 10' wide way in question as alleged by plaintiffs at site and with

regard to easementary rights of plaintiffs over the way in question, has

categorically recorded a fact finding that according to the evidence on

record, over the disputed part of the land some one placed deity, one

chabutara and at the place of deity, few trees are situated and no way

in fact is available at site.

The trial court observed that documents (Exhibit-P/1 and P/2)

produced by plaintiffs itself do not show that any way since old time is

available at site. Plaintiffs' witness PW/1 in his cross-examination has

admitted that the disputed land is part of the pasture land and

proceeding against him are also pending before the Tehsildar regarding

encroachment over the pasture land. Plaintiffs' witness PW/2 also

(3 of 7) [CSA-688/2011]

admits the existence of a Chabutara and a place of deity over the

disputed land. Thus, there is no evidence of plaintiffs to show the

existence of the alleged way in question at site, rather his own

evidence is contrary to plaintiffs' case set out in the plaint.

6. That apart, the trial court has observed that DW/1, DW/2, DW/3

and DW/4 have categorically deposed in their statements that on the

disputed land, a Chabutara at the place of deity few trees are situated.

The trial court has also observed that apart from instituting the present

civil suit, plaintiffs also made a complaint before the Tehsildar

regarding obstruction raised by the defendant. On his complaint, the

Tehsildar issued order No.3003/Revenue/06 dated 28.08.2006 to

remove any such obstruction and in pursuance thereof, site report

prepared by Patwari dated 15.09.2006 is available on record as

(Exhibit-A/1 and Exhibit-A/2). In this report, the alleged obstruction

have been removed. The trial court observed that the letter Exhibit-A/3

written by the Sarpanch, Gram Panchayat, Haldena states that there is

no house of plaintiffs, but plaintiffs have only agricultural land. The trial

court in such factual matrix and availability of evidence observed that,

plaintiffs have not proved their easementary rights over the disputed

land and further the disputed land cannot be treated as a public way.

Further, the trial court observed that plaintiffs have not approached the

court with clean hands as in the present civil suit, plaintiffs have not

disclosed about initiation of any proceedings before the Revenue

Authorities, therefore, the issue No.1 was determined against plaintiffs,

and finally, with observation that the disputed land is part of a pasture

land, the civil suit filed by appellant-plaintiffs was dismissed vide

judgment dated 08.04.2010.

7. Appellant-plaintiffs preferred first appeal assailing the judgment

and decree dated 08.04.2010. Before the first appellate court,

appellants submitted that the document map (Exhibit/4) prepared by

(4 of 7) [CSA-688/2011]

the village Panchayat showing existence of 10' wide way has not been

considered by the trial court and other evidences on record have been

misinterpreted/misconstrued, therefore, the judgment and decree of

trial court deserves to be quashed and plaintiffs' suit is liable to be

decreed. The first appellate court, in its long drawn, elaborated and

well reasoned judgment and decree dated 10.03.2011 has recorded a

fact finding that on appreciation of entire evidence on record, plaintiffs

have not been able to prove that any house is situated and any way in

question is available at the site.

As far as agricultural land of appellant-plaintiffs is concerned, the

first appellate court observed that they have way to access to their

agricultural land situated adjoining to another farmer-Dhansi, which is

apparent from the map (Exhibit-4).

As far as the claim of easementary rights over the way in

question is concerned, the first appellate court observed that plaintiffs

have not produced any evidence in this regard. If the way in question

was situated at the site and was being used by plaintiffs and the

previous Khatedar from whom plaintiffs purchased agricultural land of

Khasra No.21/2 and 22, the first appellate court observed that plaintiffs

could have produced the erstwhile khatedar and persons, who were

having access and using the alleged way in question. No such evidence

was produced by plaintiffs. The first appellate court also observed that

indisputedly, on the disputed land, Chabutara and place of deity as well

as old trees of Neem are situated. Plaintiffs and their witnesses have

not disputed this factual aspect. Further the first appellate court

observed that when plaintiffs are also one of enchroachees over the

pasture land, proceedings for removal of encroachment are pending

before the Revenue Authorities. In that view of matter, the trial court

has not committed any perversity or illegality in dismissing plaintiffs'

civil suit for mandatory and prohibitory injunction. Thus, it is clear that

(5 of 7) [CSA-688/2011]

the first appellate court has re-heard and re-appreciate entire evidence

on record and dismissing the first appeal on merits affirmed the

judgment and decree of trial court vide its judgment dated 10.03.2011.

8. On appreciation of fact findings recorded by the trial court

affirmed by the first appellate court, this Court finds that as far as the

grievance of plaintiffs for removal of obstruction alleged to be raised by

the defendant is concerned, as per report of Patwari (Exhibit-A/1) such

obstruction of defendant has already been removed pursuant to the

order of Tehsildar.

As far as claim of plaintiffs to have right to use the way in

question is concerned, both courts have concurrently recorded a fact

finding that no such way as alleged by plaintiffs in their plaint is

available at the site and over the disputed land, one Chabutara, deity

and trees of Neem are situated. The disputed land is part of the

pasture land, and plaintiffs also have been found to be encroachee

over the pasture land. Proceedings against plaintiffs for removal of

their encroachment over the pasture land have been found to be

pending before Revenue Authorities, as admitted by plaintiffs

themselves. Such fact findings are based on appreciation/re-

appreciation of evidence on record and are well within jurisdiction. At

the stage of second appeal, re-appreciation of the entire evidence as a

whole to draw a different conclusion than recorded by two courts below

is not permissible, unless and until fact findings are alleged to be

perverse or recorded on the basis of some inadmissible piece of

evidence or suffer from misreading/non-reading of evidence or

otherwise cause any miscarriage of justice being contrary to the settled

proposition of law.

9. Learned counsel for appellant-plaintiffs has not been able to prove

his case nor point out any perversity nor make out any substantial

question of law in respect of the judgment and decree passed by the

(6 of 7) [CSA-688/2011]

trial court as also the appellate court. The conclusion of the courts

below are based on findings of fact concurrently.

10 The Hon'ble Supreme Court in C.Doddanarayana Reddy

Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing

the jurisdiction of the High Court to interfere with the finding of

fact under Section 100 CPC has held that though the High Court

could have taken different view acting as the trial Court but once,

two Courts below have returned finding which is not based upon

any misreading of material documents, nor against any provision

of law neither could it be said that any judge acting judicially and

reasonably could have reach such a findings, then, the Court

cannot be said to have erred. Relying upon the previous judgment

the Supreme Court has held as under:-

"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."