Rajasthan High Court

Chaturbhuj vs Bhoodev Prasad And Another on 4 August, 2022

Bench: Sudesh Bansal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  S.B. Civil Second Appeal No. 60/2010

Chaturbhuj S/o Shri Chandrabhan Brahmin, aged 70 years, r/o
Nyotha, Teh. Nadbai, Distt. Bharatpur
                                                            ----Plaintiff-Appellant
                                      Versus
1.      Bhoodev Prasad S/o Shri Ramjilal, Nyotha, Teh. Nadbai,
        Distt. Bharatpur
2.      Sunil Kumar S/o Shri Bhoodev Prasad, Nyotha, Teh.
        Nadbai, Distt. Bharatpur
                                                 ----Defendants-Respondents

For Appellant(s) : Mr. J.P. Goyal, Senior Advocate assisted by Mr. Abhi Goyal For Respondent(s) : Mr. R.K. Agarwal, Senior Advocate assisted by Mr. Shubham Kumar Sharma

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment 04/08/2022

1. Appellant-plaintiff has preferred this second appeal under

Section 100 CPC assailing the judgment and decree dated

11.01.2010 passed in Civil First Appeal No.57/2000 by the Court

of Additional District Judge No.1, Bharatpur whereby and

whereunder, while allowing the appeal, plaintiff's suit for

permanent injunction has been dismissed and the judgment and

decree dated 09.05.2000 passed in Civil Suit No.05/1998 by the

Court of Additional Civil Judge (Junior Division) No.3, Bharatpur

whereby and whereunder plaintiff's suit was decreed, has been set

aside and further though the first appellate court dismissed the

plaintiff's suit for permanent injunction, however, recorded a

finding that disputed wall would remain common between both

(2 of 5) [CSA-60/2010]

parties and respondents-defendants have been allowed to put

their roof/load over the common wall.

2. Heard learned counsel for both parties and perused the

record.

3. The relevant facts as culled out from the record are that both

parties are neighbors and the dispute is in relation to a middle

wall having width of 14 inch. Appellant-plaintiff instituted a civil

suit claiming his sole ownership over the wall in question, sought a

decree for permanent injunction against defendants to restrain

them not to put any roof/load over the wall in question and not to

open any window, allas etc. Respondents-defendants submitted

written statements and denied plaintiff's claim alleging that the

wall in question is not of sole ownership of plaintiff but is for

common use by both parties as well as is in joint ownership of

both parties. Both parties adduced their oral and documentary

evidence in support of their respective contentions.

4. Learned trial court, vide judgment dated 09.05.2000,

decreed plaintiff's suit and issued a decree for permanent

injunction against defendants that defendants will not put any

roof/load of their building over the wall in question, marked as A

to B in the map appended with the plaint and further will not open

any window, almirah, allas etc. in the disputed wall.

5. Defendants challenged the judgment and decree dated

09.05.2000, by way of filing first appeal. Before the first appellate

court, admitted factual position between both parties came on

record that defendants have already constructed their own

separate wall adjoining to the disputed wall and further have put

their roof/load of building on their own constructed adjoining wall.

In such admitted factual situation, it was urged from the side of

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plaintiff that once defendants have already constructed their own

separate wall, the decree impugned need not to be disturbed and

now no dispute remains between parties, however, the first

appellate court proceeded to decide the first appeal on merits

taking a note that the dispute in the present suit is as to whether

the wall in question is in sole ownership of plaintiff or common

between parties, therefore, this dispute requires to be

adjudicated.

6. The first appellate court, on the basis of documents Ex.A1

and Ex.A2, observed that in the wall in question, one almirah has

already been constructed having opening towards defendants'

house and four iron nails are installed, which seems to be for

affixing the gate on the almirah. The first appellate court observed

that when an almirah is already constructed and having its

opening towards defendants' house, in such factual matrix this

wall is obviously a wall for common use and cannot be treated as

wall of having exclusive ownership of plaintiff. With such fact

finding, the first appellate court quashed and set aside the

judgment and decree of trial court dated 09.05.2000 and

dismissed the plaintiff's suit vide judgment dated 11.01.2010. But

thereafter, the first appellate court has further observed and

recorded an additional finding by its own that the wall in question

shall remain joint and common between both parties and

defendants are permitted to put load/roof of their building using

this common wall.

7. Learned counsel for both parties are ad idem and do not

dispute that defendants have already constructed their own

separate wall adjoining to the wall in question and have already

put roof/load of their building on their own constructed wall,

(4 of 5) [CSA-60/2010]

therefore, now with this subsequent change in circumstances, it is

not required for defendants to put any roof/load over the wall in

question. In that view of matter, it was not required for the

appellate court to record such finding and grant the permission by

its own to respondents-defendants to use this common wall, more

so, when there was no such prayer from the side of defendants.

Obviously, when plaintiff's suit has been dismissed by the first

appellate court, such further findings/observations passed in the

impugned judgment dated 11.01.2010 by the first appellate court,

are unwarranted and beyond the scope of prayer of plaint, hence

the same can be said to be without jurisdiction.

8. As far as the judgment dated 11.01.2010 passed by the first

appellate court to the extent of setting aside the decree dated

09.05.2000, passed by the trial court and dismissing the plaintiff's

suit, is concerned, the same is based on proper appreciation of the

undisputed factual aspect, hence need not to be interfered with

within the scope of Section 100 CPC in second appeal.

9. The Hon'ble Supreme Court in case of C.Doddanarayana

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

considering the scope of High Court under Section 100 CPC, to

interfere with fact finding, has observed as under:-

"Para 26. In a judgment in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the first appellate court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled

(5 of 5) [CSA-60/2010]

position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court 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 had satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were errorneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the Apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

10. Therefore, with the aforesaid clarification/observation, this

second appeal is disposed of and the impugned decree dated

11.01.2010 is affirmed to the extent of dismissing the plaintiff's

suit. There is no order as to cost.