Ram Laxman Through Lrs vs Bajrang Lal And Others
2022 Latest Caselaw 6010 Raj/2

Citation : 2022 Latest Caselaw 6010 Raj/2
Judgement Date : 31 August, 2022

Rajasthan High Court

Ram Laxman Through Lrs vs Bajrang Lal And Others on 31 August, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 42/2014

       Ramlaxman S/o Shri Kesari Lal Ji Deceased Through Legal
       Heirs-
1.     Ramesh Chand S/o Late Shri Ramlaxman Chandresal,
       Teh. Ladpura, Distt. Kota
2.     Brij Mohan S/o Late Shri Ramlaxman Chandresal, Teh.
       Ladpura, Distt. Kota
3.     Narendra Nagar S/o Late Shri Ramlaxman Chandresal,
       Teh. Ladpura, Distt. Kota
                                                                   ----Appellants
                                   Versus
1.     Bajrang Lal S/o Shri Kishan Lal
2.     Hemraj S/o Bajrang Lal
3.     Ramdaya S/o Bajrang                Lal    Village        Chandresal,   Teh.
       Ladpura, Distt. Kota
4.     Hajari Lal S/o Shri Nathu Lal Village Lesarda, Teh.
       Keshavrai Patan, Distt. Bundi Through General Power
       Attorney Bajrang Lal Dhakar S/o Kishan Lal R/o Village
       Chandresal, Teh. Ladpura, Distt. Kota
                                                                 ----Respondents

For Appellant(s)         :     Mr. Mahesh Gautam
For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

31/08/2022

1. Appellants plaintiffs have preferred this second appeal under

Section 100 against the judgment and decree dated 7.10.2013

passed in Appeal No.27/2007 by Additional District Judge No.2,

Kota, appeal has been allowed and judgment and decree dated

28.8.2006 passed in suit No.3/88 by Civil Judge (Junior Division)

South, Kota, has been quashed and set aside.

2. Having heard counsel for appellants and on perusal of

impugned judgment, it transpires that the first Appellate Court has

(2 of 4) [CSA-42/2014]

dismissed plaintiffs' suit for declaration and permanent injunction

in relation to claiming a easementary right on way with finding

that appellants-plaintiffs have an alternative way for their ingress

and egress to their agricultural land. The first Appellate Court

placed reliance on the judgment of Rama Vs. Megha & Ors.

reported in 2002 (2) DNJ (Raj.) 631 wherein a proposition of law

has been propounded that "if an alternative passage is available,

the easementary right of necessity cannot be claimed even if the

alternative passage is inconvenient or bit longer".

3. It appears that from the record that appellants never

pursued this second appeal which was filed on 13.1.2014 and

having considered the merits of case, there is no substantial

questions of law involved in the present appeal.

4. It is trite law that the first Appellate Court has power and

jurisdiction to reverse and set aside the judgment and decree of

the trial Court and in the present case the first Appellate Court has

given the cogent and convincing reasons to set aside the

judgment and decree of the trial Court and to dismiss plaintiffs'

suit. The judgment passed by the first Appellate Court is an

elaborate and well considered judgment wherein the evidence of

both parties have been considered and reasonings have been

assigned to dismiss plaintiffs' suit.

5. Hon'ble the Supreme Court in case of Kondiba Dagadu

Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 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

(3 of 4) [CSA-42/2014]

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. 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 first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arriaved at without evidence. "

6. The aforesaid judgment has been affirmed and relied upon

by the Supreme Court in another judgment of Gurnam Singh Vs.

Lehna Singh [(2019) 7 SCC 641].

7. In a recent judgment of Murthy & Ors. Vs. C. Saradambal

& Ors. [(2022) 3 SCC 209], the Hon'ble Supreme Court while

examining the powers of the first Appellate Court to interfere with

findings of the trial Court and to reverse findings of the trial Court

has placed reliance upon a celebrated judgment in case of

Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179]

has held as under:-

"61. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari V. Purushottam Tiwari, wherein it has been observed that while writing a judgment of reversal, an appellate court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the trial court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the trial Court suffers from a material irregularity or is based on inadmissible

(4 of 4) [CSA-42/2014]

evidence or on conjectures and surmises, the appellate court is entitled to interfere with the findings of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the trial court should not be interfered with lightly on a question of fact. Secondly, while reversing a findings of facat, it is necessary that the appellate court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Civil Procedure Code, 1908, as the first appellate court is the final court of facts and the said findings are immune from challenge in a second appeal."

8. On appreciation of aforesaid proposition of law, it is clear

that fact findings either recorded by two Courts below or recorded

by the first Appellate Court, if based on appreciation of evidence

not to be interfered with by the High Court while exercising its

jurisdiction under Section 100 of CPC unless same is not perverse

or otherwise against settled proposition of law. Counsel for

appellants could not point out that the findings of first appellate

court suffer from any infirmity/illegality or misreading/non-reading

of evidence. In such circumstances, no substantial question of law

arises in this second appeal. Subsequently is sine qua non for

exercising the jurisdiction under Section 100 CPC and to entertain

the second appeal. Hence, the second appeal is found to be devoid

of merits and the same is dismissed. There is no order as to

costs.