Rajasthan High Court
Ramkishan S/O Gopiram By Caste ... vs Ramesh Chand S/O Parsoti Lal, By ... on 6 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 11/2019
1. Ramkishan S/o Gopiram Aged About 44 Years,
2. Vishan Singh S/o Gopiram By Caste Jatav, Aged About 54
Years,
both R/o Sogariya Mohalla, Outside B-Narayan Gate,
Bharatpur
----Appellants-Defendants
Versus
1. Ramesh Chand S/o Parsoti Lal, R/o Sogariya Mohalla,
Outside B-Narayan Gate, Bharatpur.
Respondent-Plaintiff
2. Shyam Singh S/o Gopiram R/o Sogariya Mohalla, Outside
B-Narayan Gate, Bharatpur
----Respondent-Proforma
For Appellant(s) : Mr. J.K. Moolchandani
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
06/07/2022
1. Appellant-defendants have preferred this second appeal
under Section 100 of CPC against the judgment and decree dated
13.09.2018 in Civil First Appeal No.14/2016 (CIS No.36/2016) by
the Additional District Judge No.1, Bharatpur, allowing appeal set
aside the judgment and decree dated 26.03.2016 in civil suit
No.02/2015 by Additional Civil Judge No.4 Bharatpur whereby and
whereunder the following decree for permanent injunction has
been passed in civil suit No.02/2015 instituted by respondent-
plaintiff:-
(2 of 4) [CSA-11/2019]
"अतः अपीलांट/वादी की अपील सवीकार कर अधीनसस्थ न ा ल कय ननरन
नदनक 26.03.2016 को अपासत नक ा जाता हह तस्था वादी का दावा वासतय सस्थाई
ननषयधाजा न डिकी नक ा जाता हह। प्र नतवादी नदी नकाा क्शा संला संलगन वाद पत्र प्रदान १ मर
दाान य गए लाल रंग क्शा सय नदखाई गई गली पर कोई अ नतकमर न करर , क्शा सास्थ ही ह
सपसट नक ा जाता हह की उक्त लाल रंग क्शा सय नदखाई गली कय प ने पश्चिम मर न तो कोई
रासता हह, न ही पानी बहानय का कोई सस्थान हह, इक्शा स नलए वादी को प ने पश्चिमी ओर पानी
बहानय का व् रासता ननकलनय का अ नधकार नहहीं होगा । तदनदक्शा सार न डिकी प परान
बना ा जावय। "
2. Heard learned counsel for the appellant and perused the
judgment and material available on record.
3. It appears from the record that a simplicitor civil suit for
permanent injunction in relation to the "गली" in question. It is not
in dispute that between parties and admitted position that "गली" in
question is a government lane. The decree impugned has been
passed to the effect that appellant-defendant should not made any
encroachment over the "गली" and simultaneously respondent-
plaintiff has also restrained not to open any way and to flow the
water in the gali in question. The impugned decree is an equitable
in nature whereunder both parties have been restrained, to
maintain government lane intact.
4. Learned counsel for the appellant-defendant argued that
plaintiff-respondent has made encroachment over the part of
government lane, hence by the impugned decree such
construction would restrain and the size of Gali has become
narrowed.
5. The defendant has not raised any such contention in his
written statement nor filed any counter claim or counter suit
against the respondent-plaintiff, hence, such arguments at the
stage of second appeal cannot be entertained, which do not arise
from pleadings of parties.
(3 of 4) [CSA-11/2019]
6. Having considered the nature of impugned decree, which is
innocuous in nature, this Court is not inclined to interfere in this
second appeal. More so, no substantial question of law has been
arise in this case.
7. In such situation, the fact findings recorded by the first
appellate court, do not suffer from any perversity or jurisdictional
error rather than the same are well within jurisdiction.
8. Hon'ble the Supreme Court in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has
held as under :-
"It is not within the domain of the High Court to
investigate the grounds on which the findings were
arrived at by the last Court of fact, being the first
appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses accepted
by the trial court in respect of credibility but even
where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in
second appeal when it is found that the appellate
court has given satisfactory reasons for doing so."
9. The Supreme Court in case of Santosh Hazari Vs.
Purushottamn Tiwari [(2001) 3 SCC 179], State Bank of
India Vs. Emmsons International Limited [(2011) 12 SCC
174], Jagannath Vs. Arulappa [(2005) 12 SCC 303],
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [(1999)
3 SCC 722], Arumugham Vs. Sundarambal [JT 1994 (4) SC
464], Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] and
Guranm Singh and Ors. Vs. Lehna Singh Reported in
[(2019) 7 SCC 641] has observed that the first appellate court is
well within its jurisdiction to re-appreciate the evidence as a whole
(4 of 4) [CSA-11/2019]
and to record its own findings of fact by reversing the findings of
the trial court if the findings of the trial court are found to be
perverse.
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 and assigning reasons. Such findings do
not suffer from any perversity. Learned counsel for appellant also
could not point out that the findings of first appellate court suffer
from any infirmity/illegality or misreading/non-reading of
evidence. In such circumstances, no substantial question of law
arises in this second appeal. Subsequently is sine qua non for
exercising the jurisdiction under Section 100 CPC and to entertain
the second appeal. Hence, the second appeal is found to be devoid
of merits and the same is dismissed.
11. There is no order as to cost.
12. All other pending application(s), if any, also stand(s)
disposed of.
13. Record be sent back forthwith.
(SUDESH BANSAL),J
TN/6
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