Rajasthan High Court
Dwarka Lal vs Sayeeda Khatoon And Others on 1 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 282/2015
Dwarkalal S/o Nanuram R/o Jhalawar, Distt. Jhalawar
----Appellant-Defendant No.2
Versus
1. Sayeeda Khatoon W/o Fahimmudin, Jhalawar
2. Salauddin S/o Fahimmudin, Jhalawar
3. Fahmida D/o Fahimmudin W/o Valiuddin, Jhalawar
Presently Residing At Hyderabad
4. Sanjida D/o Fahimmudin W/o Shaikh Mohammad Sharif,
Jhalawar Presently Residing At Hyderabad
5. Nikhat Parveen D/o Fahimmudin W/o Salauddin, Jhalawar
Presently R/o Tonk
6. Salimuddin S/o Fahimmudin, Jhalawar
7. Moinuddin S/o Fahimmudin, Jhalawar
8. Ajra Parveen D/o Fahimmudin W/o Sayed Saeed, Jhalawar
Presently R/o Khanpur, Distt. Jhalawar
9. Shri Nanda @ Nand Kishore S/o Nanuram Tamboli,
Jhalawar
10. Ramesh S/o Nanuram Tamboli, Jhalawar
----Respondents-Defendant
For Appellant(s) : Mr. Sanjay Mehrishi
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
01/07/2022
1. Appellant-defendant No.2 has filed this second appeal under
Section 100 of C.P.C, assailing the judgment and decree dated
19.02.2015 passed in civil first appeal No.25/2003 by the Court of
Additional District Judge, Jhalawar affirming the judgment and decree
dated 30.04.2002 passed in civil suit No.68/1999 (56/1988) by the
(2 of 3) [CSA-282/2015]
Court of Civil Judge (Sr.D.) Jhalawar whereby and whereunder
respondent-plaintiffs' suit for permanent injunction has been decreed
and the trial court has directed the defendants not to obstruct to keep
the windows, projection and spout from third floor of plaintiffs' house
towards western side and further has directed the defendant to leave
four feet open space towards plaintiff's house and to raise construction
after leaving four feet open space towards plaintiff's house.
2. Heard learned counsel for appellant and perused impugned
judgments and material available on record.
3. It appears from the record that the dispute between the parties is
in relation to the right of plaintiff to keep his windows, projection and
spout from third floor towards western side in the open space. From
the record, it is also clear that on the date of institution of suit,
plaintiffs' windows were opened and appellant-defendant himself put a
proposal to plaintiffs that he is ready to leave 4' open space towards
plaintiffs' house and would raise construction thereafter. Such proposal
was accepted by plaintiffs. The trial court, on the basis of material
available on record, has passed the decree in the aforesaid manner.
The appellant, by way of first appeal, challenged the impugned
judgment and decree dated 30.04.2002, which has been dismissed.
4. In the present matter, since the impugned decree has been
passed on the basis of proposal put forth by the appellant-defendant
himself for leaving four feet open space towards plaintiffs' house,
therefore the appellant can not challenge the impugned decree,
appellant is bound by way of principle of promissory estoppel. The
impugned decree is passed on the material on record and on the basis
of admission of the appellant-defendant.
5. Counsel for defendant has not been able to prove his case or to
point out any perversity or make out any substantial question of law in
(3 of 3) [CSA-282/2015]
respect of the judgment and decree passed by the trial court as also the
appellate court. 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 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. With the aforesaid observation, the second appeal is bereft of
merits and the same 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/25
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