The Paropkarani Sabha vs Smt Urmila Sharma And Ors
2022 Latest Caselaw 4389 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 656/2017

The Paropkarni Sabha, A Registered Society Under Societies
Registration Act, Through Its Secretary Shri Om Muni, Dayanad
Ashram, Kaisar Ganj, Ajmer.
                                                          ----Appellant-Plaintiff
                                   Versus
1.     Smt. Urmila Sharma, Narayan Thekedar Ka Makan, Chatai
       Mohalla, Kaisar Ganj, Ajmer. And Smt. Urmila Sharma, In
       Front Of Dayanad Ashram Milk Dairy Booth, Kaisar Ganj,
       Ajmer.
2.     The Ajmer Zila Dugdh Utpadak Sahakari Sangh Ltd., In
       Front Of H.m.t, Beawar, Ajmer.
3.     The Municipal Council, Ajmer.
                                               ----Respondents-Defendants

For Appellant(s) : Mr. B. L. Agarwal through V.C.

For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

01/07/2022

1. Appellant-plaintiff (hereafter referred to "plaintiff") has filed

this second appeal under Section 100 of C.P.C, assailing the

judgment and decree dated 18.07.2017 passed in civil first appeal

No.02/2013 by Additional District Judge No.3, Ajmer dismissing

appeal and affirming the judgment and decree dated 22.05.2007

passed in civil suit No.87/1998 by Civil Judge (Jr.D.) Ajmer

whereby and whereunder the civil suit for mandatory and

permanent injunction and for removal of Iron Cabin/Milk-booth

has been dismissed.

(2 of 3) [CSA-656/2017]

2. Heard learned counsel for the appellant and perused the

impugned judgments and material on record.

3. It appears from the record that Iron-Cabin in question was

allotted and placed at the site in the year 1983, and the plaintiff

instituted civil suit for permanent and mandatory injunction in

relation to removal dairy booth in the year 1997. It appears from

the record that the dairy both placed on the public road of the

width of 80 ft. wide, does not cover any part of plaintiff's plot. The

trial court observed that on perusal of the photographs and the

location of the dairy booth, it is not established that the same is

causing any hindrance to the plaintiff nor adversely affect the

natural flow of air and light to the plaintiff's house.

The trial court observed that there is an iron-net between

dairy booth and plaintiff's house. The trial court has also observed

that the plaintiff did not object about the dairy booth for last 15

years. In such factual matrix, the case of plaintiff to claim special

injury and prayer for injunction and for removal of dairy booth was

not found to be decreed and the suit was dismissed vide judgment

and decree dated 22.05.2007.

4. Aggrieved of the same, the plaintiff filed first appeal, which

came to be dismissed on 18.07.2017 on the ground that plaintiff

failed to prove his case. Hence, this second appeal.

5. Learned counsel for the plaintiff has not been able to prove

his case or to point out any perversity or make out any substantial

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

courts below. There are concurrent findings. The conclusion of the

courts below are based on findings of fact. The Hon'ble Supreme

Court in the case of Kondiba Dagadu Kadam Vs. Savitribai

Sopan Gujar [(1999)3 SCC 722] and catena of other

(3 of 3) [CSA-656/2017]

judgments passed in case of Pakeerappa Rai Vs. Seethamma

Hengsu & Ors., [(2001)9 SCC 521], Thulasidhara & Anr. Vs.

Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs.

Ameerchand, [(1981)2 SCC 414], Ishwar Das Jain Vs.

Sohan Lal, [(2000)1 SCC 434] and State of Madhya Pradesh

Vs. Sabal Singh & Ors., [(2019)10 SCC 595], C.

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

ors. [(2020)4 SCC 659] has held that the concurrent findings of

facts even if erroneous cannot be disturbed by the High Court in

exercise of the powers under Section 100 CPC. This proposition is

well established. Findings of fact based on appreciation of

evidence are the province of the trial court and the first appellate

court.

6. In view of concurrent findings of fact recorded by both courts

below, this court is not inclined to interfere with impugned

judgments, the second appeal is hereby dismissed.

7. No order as to cost.

8. Record be sent back forthwith.

9. Stay application and any other pending application(s), if any,

stand(s) disposed of.

(SUDESH BANSAL),J

TN/28

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