Rajasthan High Court

Bajrang Lal And Others vs Ram Narayan on 31 August, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 52/2015

1.     Bajrang Lal S/o Ganesh Ram,
2.     Ramdayal S/o Bajrang Lal
3.     Kanhaiya Lal S/o Bajrang Lal,
       All resident of Ramgarh, Tehsil Kishanganj, Distt. Baran
       Rajasthan
                                              ----Appellants-Defendants
                                   Versus
Ramnarayan S/o Viadhnath, R/o Village Gorela, Presently R/o
Ramgarh, Tehsil Kishanganj, Distt. Baran Rajasthan
                                                ----Respondent-Plaintiff

For Appellant(s) : Mr. Rahul Sharma & Mr. Rishu Jain for Mr. Rajneesh Gupta For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

31/08/2022

1. Learned counsel for appellant-defendants have preferred this

second appeal under Section 100 of CPC assailing the judgment

and decree dated 31.10.2014 passed in civil regular appeal

No.04/2012 by Additional District Judge, Baran whereby and

whereunder the first appeal has been allowed and the judgment

and decree dated 10.01.2012 passed in civil suit No.19/2009 by

Civil Judge (Jr. D.), Kishanganj, District Baran dismissing the

plaintiff's suit for permanent injunction, has been quashed and

following decree has been passed in favour of the respondent

plaintiff and against appellant-defendants:-

(2 of 6) [CSA-52/2015]

" फलस्वरूप ्व वादा/अपाल वार्थी र वामन वार वायण ककी ओर सस प्रस्र् ककी गई यह अपाल व्वरूद्व प्रप्रतयर्थीगण/प्रव््व वादा बजर बजरंगल वाल ्वगलरह स्वाक वार कर म वा्ह् नय वाय वालय द्व वार वा प वाारर् प्रश्नग् आदसश वदन वा बजरंक 10.01.2012 को अप वास् वकय वा ज वा् वा हल ्व ्व वादा/अपाल वार्थी कस हक म ्व प्रव््व वादागण कस व्वरूद्ध इस आशय ककी सर् वाया वनषसध वाज वा ज वारा ककी ज वा्ा हल वक ्व वाद-पत्र कस स वार् स बजरंलगन पाररवशष्ट "ए" म दश वादयस गयस मक वान ्व वाकस र वामगढ़ म ्व वादा ्व उसकस पारर्व वार को प्रव््व वादा / प्रप्रतयर्थीगण जबरन वबन वा व्ववधक प्रवक प्रक्रिय वा अपन वायस बसदखल नहा करस ए्व बजरं उसकस ू द उपयोग-उपभोग म बसज वा मद वाखल् नहहीं करस और न वा हा वकसा प्रक वार श वा बजरंव्पण ककी दखल बजरंद वाजा करस । इस वनणद य ्व सर् वाया वनषसध वाज वा क वा प्रव््व वादागण कस व्ववधक प्रवक प्रक्रिय वा अपन वानस पर कोई व्वपरा् प्रभ वा्व नहा होग वा। यवद र वाजस्व नय वाय वालय द्व वार वा यह वनवणद ् वकय वा ज वा् वा हल वक व्व्व वावद् सर्ल प्रव््व वादागण कस ख वा्सद वारा हक हकूक ककी भवू म म वसर्् हल ्ो ऐसस वनणद य उनकस हक हकूक कस व्वरूद्व इस अपाल कस वनणद य पर कोई प्रभ वा्व नहा होग वा। ्दनरस वार यह अपाल वनस् वाारर् ककी ज वा्ा हल। उभय पक्षक वार वान स्वय बजरं अपन वा-अपन वा खर वाद ्वहन करस गस। विककी पर वाद बन वाय वा ज वा्व । म वा्ह् नय वाय वालय ककी पत्र वा्वला वनयम वानरस वार लसार लौ लौट वाया

ज वा्वस । "

2. Heard learned counsel for appellants, perused the impugned

judgments.

3. According to the evidence on record, an undisputed fact has

revealed that houses of plaintiff are constructed and the plaintiff

with his family is residing in houses even much prior to the

institution of the suit. The appellant-defendants and their

witnesses have not denied the actual possession of the plaintiff

over the suit plot but has argued that since the plaintiff does not

have ownership/title of the suit property nor plaintiff has filed any

suit for declaration of title, therefore his simplicitor suit for

permanent injunction is not maintainable.

4. Learned counsel for appellant-defendants has placed reliance

on the judgment of Jharkhand State Housing Board Vs. Didar

Singh & Anr. [(2019)17 SCC 692].

(3 of 6) [CSA-52/2015]

5. Learned trial court, while dismissing the suit vide judgment

and decree dated 10.01.2012 has observed that since the plaintiff

could not prove his ownership/title of the suit property and has

produced only a sale agreement, therefore, his civil suit for

permanent injunction is not liable to be succeed. The trial court

has not disbelieved upon the possession of plaintiff over the suit

property. The trial court has also decided issue No.3 regarding

objection of defendants that the trial court does not have

jurisdiction to try the suit against defendants.

6. The plaintiff preferred the first appeal and the first appellate

court reconsidered the entire evidence and material on record and

observed that the present civil suit is in the nature of permanent

injunction, therefore, the factum of ownership is not warranted to

be inquired into. The first appellate court observed that since it is

well proved by the plaintiff and his witnesses as well as the

documentary evidence of agreement and photographs etc. that

the plaintiff and his family is residing on the suit property where

pakka houses are situated and further this factual possession is

not disputed by defendants and their witnesses rather they have

been admitted the possession of plaintiff over the suit property,

the first appellate court upset the judgment and decree of trial

court and decreed the suit for permanent injunction just to

restraining defendants not to dispossess the plaintiff without

following due course of law. The first appellate court has also

observed that if any proceedings before the revenue court, have

initiated by defendants, the decree passed in favour of plaintiff to

protect his possession would not come in way.

7. It is settled principle of law that when the plaintiff is found in

lawful possession and there is no evidence to show his possession

(4 of 6) [CSA-52/2015]

as trespasser, he cannot be dispossessed even by the true owner

without following due process of law.

As far as judgment of Jharkhand State Housing Board

(supra) relied upon by learned counsel for appellants, there is no

disagreement to the proposition of law propounded therein,

however here in the peculiar facts of the present case, the

judgment does not render any help to appellants. The decree

impugned dated 31.10.2014 is innocuous in nature and has been

passed in view of in disputed and admitted fact that the plaintiff's

houses were constructed and the plaintiff was residing in the

houses prior to institution of the present suit.

8. In Santosh Hazari Vs. Purushottamn Tiwari [(2001) 3

SCC 179] the Apex Court held as under:-

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need

(5 of 6) [CSA-52/2015]

for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar

[(1999) 3SCC 722] the Apex Court held as under:-

"The findings of the first appellate court cannot be termed to be either perverse or based upon no evidence. Such findings are based upon appreciation of evidence and being the finding of the last court on facts were binding upon the parties."

9. Both aforesaid judgments have been relied upon and

affirmed by the Hon'ble Supreme Court in the case of C.

Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and

ors. [(2020)4 SCC 659], for not interfering with findings of the

first appellate court. Thus, there is no dispute about proposition of

law that the first appellate court has jurisdiction to upset the

judgment and findings of the trial court, if the same are perverse

and contrary to the settled proposition of law.

10. This Court finds that the first appellate court has acted well

within its jurisdiction and the reversal of findings are based on due

appreciation of evidence by assigning reasons. Such findings do

not suffer from any perversity. Learned counsel for appellant also