Rajasthan High Court
Ram Babu vs Cheetriya And Others on 4 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 246/2015
Ram Babu S/o Shri Bhoori Singh, R/o Chiksana, Tehsil & District
Bharatpur (Raj.)
----Appellant-Defendant
Versus
1. Cheetriya S/o Shri Hargovind (deceased)
1/1. Suresh Chand S/o Late Shri Cheetriya
1/2. Siyaram S/o Late Shri Cheetriya
1/3. Dalchand S/o Late Shri Cheetriya
1/4. Sunil S/o Late Shri Cheetriya
1/5. Santosh S/o Late Shri Cheetriya
All R/o Chiksana, Teshil & District Bharatpur (Raj.)
----Respondents/Plaintiffs
For Appellant(s) : Mr. Prahlad Sharma
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgement
04/07/2022
1. Appellant-defendant has preferred this second appeal under
Section 100 of CPC against the judgment and decree dated
15.01.2015 passed in Civil First Appeal No.08/2007 by the
Additional District Judge No.2, Bharatpur, dismissing the appeal
and affirming the judgment dated 30.05.2007 passed in Civil Suit
No.08/2005 by the Civil Judge (Junior Division) Bharatpur,
whereby and whereunder respondents-plaintiffs' suit for
permanent injunction has been decreed against the appellant in
the following manner:-
"अतः वाद वादी ववरुद्ध प्रवतवादी दी सवीस्वीकार वस्वीकर किया िया जास्वीकर प्रवतवादी स्वीकतिवादी को र कियह
पााबंदद वस्वीकर किया िया जाता ह स्वीक वह दी सवर कियम अथवा अपाने वस्वीकसी एिया जेट स्वीके माधर कियम से
(2 of 4) [CSA-246/2015]
वादी स्वीके गतिवादी कोत तरफ पारप बं पाड़ने वाले रादी सते स्वीकतिवादी को बंदद स्वीकरने से प्रवतबंदविबंधित रहे व
इस रादी सते स्वीके उपार कियतिवादी कोग व उपाभतिवादी कोग स्वीकरने मे वादी स्वीकतिवादी को स्वीकतिवादी कोई रुस्वीकावट पादा नह
स्वीकरे । खरा् पाक्षस्वीकारान अपाना अपाना वहन स्वीकरे गे। तदनसार पाररा वरचा डि डिक
मवप त् व हतिवादी को।"
2. Heard learned counsel for appellant and perused the record.
3. Learned counsel for appellant has argued that plaintiffs have
an alternate way for having ingress/egress to their land of Khasra
No.1074 and the way in question is the personal way of
defendant, hence the trial court and the first appellate court have
committed illegality and jurisdictional error in passing the
impugned decree for permanent injunction against the appellant.
4. Having heard learned counsel for appellant and on perusal of
record, it appears that plaintiffs claimed permanent injunction
alleging that the way in question is situated towards the eastern
side of the plaintiffs' land of Khasra No.1074 and the appellant-
defendant, in his written statement denied the existence of the
way in question. It is not the case of defendant in his written
statement before the trial court that the way in question exists at
site and the same is exclusive and personal way, to be used only
by the defendant. Thus, the argument of counsel for appellant, is
not liable to be sustained at the stage of second appeal, being
unfounded from pleadings.
5. As far as, the existence of way at site in question is
concerned, both courts have recorded fact findings on the basis of
appreciation of evidence that 12 feet wide way exists towards the
eastern side and that is the only way for plaintiffs to have their
access. The defendant and his witness DW.3 in their cross-
examination do not dispute about the existence of way.
(3 of 4) [CSA-246/2015]
6. It is also on record that at one point of time, the Gram
Panchayat granted permission to the defendant to raise some
construction, however, on filing the appeal, that permission has
been dismissed by the administration. It has been held that
plaintiffs, by their own evidence and with the support of the
document (Exhibit 1) have proved that they are using the way for
more than 25-30 years and they have an easementary right to
use the way.
7. The fact findings in relation to the way in question, which are
based on appreciation of evidence of both parties and counsel for
appellant could not point out any perversity, jurisdictional error or
any ground that findings are based on misreading/non-reading of
the evidence or passed on any inadmissible piece of evidence.
8. The Honb'le Supreme Court in 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], State of Madhya Pradesh Vs. Sabal
Singh & Ors., [(2019) 10 SCC 595] and D. Doddanarayan
Reddy and Ors. Vs. C. Jayarama Reddy and Ors. Reported in
[(2020) 4 SCC 659] has categorically held that at the stage of
second appeal, fact findings recorded by two Courts below, based on
appreciation of evidence, should be honoured and must not be
interfered with unless and until there is some perversity, illegality or
jurisdictional error which leads manifest injustice. Once findings of fact
recorded by two Courts below are justified and based on due
appreciation of evidence, re-appreciation of evidence at the stage of
(4 of 4) [CSA-246/2015]
second appeal in order to draw a different conclusion is not warranted.
The scope of second appeal is confined to examine substantial question
of law, which are sine qua non to exercise powers under Section 100 of
CPC.
9. In present case, on appreciation of findings of fact, which suffers
from no perversity, no substantial question of law arises, in absence of
any substantial question of law, this second appeal is not liable to be
entertained and the same is hereby dismissed.
10. Any other pending application(s), if any, also stand(s) disposed of.
11. Record of both courts be sent back.
12. There is no order as to costs.
(SUDESH BANSAL),J
SACHIN /115
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