Rajasthan High Court
Mahendra Kumar vs Govind And Others on 4 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 37/2016
Mahendra Kumar S/o Shri Hanuman Prasad, Mandrella, Teh. Chirawa,
Distt. Jhunjhunu, Raj.
----Appellant
Versus
1. Govind S/o Jagdish, Mandrella, Teh. Chirawa, Distt. Jhunjhunu,
Raj.
2. Ram Gopal S/o Jagdish, Mandrella, Teh. Chirawa, Distt.
Jhunjhunu, Raj.
3. Ram Kishore S/o Jagdish, Mandrella, Teh. Chirawa, Distt.
Jhunjhunu, Raj.
----Respondents
For Appellant(s) : Mr. Kunal Agarwal
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
04/07/2022
1. Appellant-plaintiff has filed this second appeal under Section
100 of the Code of Civil Procedure, assailing judgment and decree
dated 24.08.2015 passed by Additional District Judge No.2,
Jhunjhunu in appeal No.01/2012 (22/12) (37/2012), affirming the
judgment and decree dated 27.07.2012 passed by Civil Judge
(Junior Division), Pilani in Civil Suit No.9A/2005 whereby suit for
declaration and permanent injunction has been dismissed.
2. Heard counsel for appellant and perused the record.
3. It appears from record that appellant-plaintiff has come out
with a case that plot in question is ancestral property and plaintiff
is having title and possession over the same. Plaintiff claimed the
decree for permanent injunction against private defendants to the
effect that they may be restrained not to open any gate and nor to
raise any construction in front of the plot of plaintiff. The trial
Court as well as first Appellate Court have concurrently held that
(2 of 3) [CSA-37/2016]
plaintiff has not produced any document of title nor has produced
any evidence to show his possession over the plot in question. The
plot in question is an open piece of land and in absence of any
documentary evidence neither plaintiff can be treated to be owner
nor can be held in possession of plot in question. It appears from
record that after filing of suit the defendant No.1 Jagdish Prasad
has passed away, the suit was declared abated. The plaintiff's
claim of injunction qua the all three defendants on the basis of
one and common cause of action. The cause of action qua the
other defendants, cannot be segregated as such the suit as a
whole deserves to be declared as abated. However, the suit for
permanent injunction against other defendants is also not liable to
be succeeded on merits as well.
4. In the present case both Courts while examining the suit for
permanent injunction has ancillary examined the issue of
ownership as well as possession over the plot in question and has
concurrently held that plaintiff has neither produced any evidence
to show ownership and possession over the plot in question.
Hence, this Court find that no substantial question of law in that
backdrop of facts arise in this second appeal and no interference is
required to be made out in the fact findings recorded by the Court
below.
5. The findings recorded by two Courts below are findings of
fact and do not give rise to formulation of any substantial question
of law. In absence of involvement of any substantial question of
law, the second appeal cannot be entertained for exercising
jurisdiction under Section 100 CPC. The substantial questions of
law as proposed by appellant-plaintiff are essentially questions of
(3 of 3) [CSA-37/2016]
fact, which requires reappreciation of evidence. Reappreciation of
evidence is not permissible within the scope of Section 100 of
CPC, unless and until there is some illegality or perversity in
findings. None of the question of law, falls within purview of
substantial question of law. In order to exercise the scope of
Section 100 of CPC, involvement/formulation of substantial
question of law is sine qua non. Otherwise also, it is a case of
concurrent findings of facts, which even if erroneous, cannot be
disturbed in exercise of powers under Section 100 CPC as has
been held 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
C.Doddanarayana Reddy and Ors. Vs. C.Jayarama Reddy and
Ors. [(2020) 4 SCC 659]. Since no substantial questions of law
are involved in present appeal thus, same is not liable to be
entertained.
6. Accordingly, the second appeal is found to be devoid of
merits and the same is hereby dismissed. There is no order as to
costs.
7. Stay application and any other pending application(s), if any,
also stand disposed of.
(SUDESH BANSAL),J
NITIN /3
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