Gajraj Singh vs Givind Singh And Anr
2022 Latest Caselaw 4687 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 311/2015

Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.
                                                     ----Appellant-Defendant
                                   Versus
1. Govind Singh S/o Tula Ram, R/o Bhot, presently residing at
Neem Darwaja, Bharatpur
2.   Krishna Kumari W/o Shri Ramji Lal, R/o Akhegarh, Tehsil
Nadbai, Bharatpur
                                                   ----Respondents-Plaintiffs

Connected With S.B. Civil Second Appeal No. 305/2015 Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.

----Appellant-Defendant Versus

1. Govind Singh S/o Tula Ram, R/o Bhot, presently residing at Neem Darwaja, Bharatpur

2. Krishna Kumari W/o Shri Ramji Lal, R/o Akhegarh, Tehsil Nadbai, through power of attorney holder Shri Govind Singh S/o Shri Tula Ram, R/o Bhot, presently residing at Neem Darwaja, Bharatpur

----Respondents-Plaintiffs S.B. Civil Second Appeal No. 369/2015

1. Govind Singh S/o Tula Ram, R/o Bhot, presently residing at Neem Darwaja, Bharatpur

2. Krishna Kumari W/o Shri Ramji Lal, R/o Akhegarh, Tehsil Nadbai, through power of attorney holder Shri Govind Singh S/o Shri Tula Ram, R/o Bhont, presently residing at Neem Darwaja, Bharatpur

----Plaintiffs-Appellants Versus Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.

                                                  ----Defendant-Respondent


For Appellant(s)         :     Mr. Alok Garg
For Respondent(s)        :     Mr. Rahul Sharma



                                            (2 of 10)             [CSA-311/2015]


            HON'BLE MR. JUSTICE SUDESH BANSAL

                                 Judgment

11/07/2022

1. All three second appeals arise out of the Civil Suit for

prohibitory and mandatory injunction filed by plaintiff-Govind

Singh, being power of attorney holder of Smt. Krishna Kumari

against the defendant-Gajaraj Singh and in that suit defendant-

Gajraj Singh has filed counter claim seeking prohibitory injunction

against plaintiff.

2. The dispute between the parties, is in relation to the gully of

8 feet width, situated between the houses of both parties. Both

parties are neighbors.

3. The trial court, although recorded fact finding that the gully

of 8 feet wide, exists between the houses of both parties yet

dismissed the plaintiff's suit for prohibitory and mandatory

injunction and simultaneously dismissed the counter claim of the

defendant vide judgment and decree dated 21.01.2006.

4. Plaintiff, feeling aggrieved by the dismissal of his suit for

prohibitory and mandatory injunction, challenged the judgment

and decree dated 21.01.2006 by filing Civil First Appeal registered

as C.F.A No.11/2006. The defendant challenged the judgment and

decree dated 21.01.2006 to the extent of dismissing his counter

claim and defendant's first appeal was registered as C.F.A.

19/2006.

5. Plaintiff's appeal No. C.F.A. 11/2006 has partly been allowed

by the first appellate court being the Additional District Judge

No.2, Bharatpur, vide judgment and decree dated 06.05.2015 and

the judgment of trial court dated 21.01.2006 has been set aside

to the extent of dismissing the plaintiff's suit for prohibitory

(3 of 10) [CSA-311/2015]

injunction. The first appellate court has passed a decree for

prohibitory injunction against the defendant to maintain the status

of the gully in question, having 8 feet width, intact but dismissed

the plaintiff's prayer for seeking mandatory injunction, to remove

the construction of defendant, alleged to be raised in the gully.

The first appellate court, in its judgment dated 06.05.2015,

categorically observed that plaintiff has not clarified as to what

nature of construction has been raised by the defendant in the

gully in question, hence in absence of specific details and

evidence, no decree for mandatory injunction was passed.

6. Against the judgment and decree dated 06.05.2015 passed

in Civil First Appeal No. 11/2006 by the Additional District Judge

No.2, Bharatpur, the plaintiff has preferred Civil Second Appeal

No.369/15, to pursue his prayer of mandatory injunction whereas

the defendant has preferred Civil Second Appeal No. 305/2015,

feeling aggrieved by the grant of prohibitory injunction against the

defendant to maintain the gully in question intact.

7. The Civil First Appeal No.19/2006 preferred by the defendant

against the dismissal of his counter claim, came to be dismissed

by the separate judgment dated 06.05.2015 and there against

defendant has preferred Civil Second Appeal No.311/15, to pursue

his counter claim in relation to the gully in question.

8. Hence, all three second appeals have come up before this

Court in the backdrop of aforesaid facts.

9. Heard learned counsel for both parties and perused the

impugned judgments of courts below.

10 It appears from record that plaintiff-Govind Singh instituted

a Civil Suit for prohibitory and mandatory injunction in the year

2002, alleging inter alia that his residential house is situated at

(4 of 10) [CSA-311/2015]

Neem Darwaja, Bharatpur, which was purchased by Smt. Krishna

Kumari through registered sale deed dated 03.05.1979 from one

Smt. Prakash Devi. Plaintiff is the power of attorney holder of

Smt. Krishna Devi, who has also been made party as plaintiff

No.2. It has been averred in the plaint that towards western side

of plaintiff's house, the residential house of defendant is situated

after leaving 8 feet wide gully. Plaintiff averred that in this 8 feet

wide gully, windows, ventilators etc. of plaintiff's house have their

opening and this gully is of common use between both parties.

Plaintiff averred that during winter breaks of the month of

December, 2000, the defendant has raised some construction in

the northern side of this gully and has closed the gully by putting

a gate on two pillars. Hence, the present suit was instituted

making a prayer that defendant be restrained by way of

prohibitory injunction, not to close the existence of the gully in

question and to maintain its existing position as well as plaintiff's

prayer for issuance of decree for mandatory injunction, seeking

removal of the illegal construction/encroachment alleged to be

made by defendant in the north side of the gully in question.

11. Defendant-Gajraj Singh submitted written statement and

while denying plaintiff's case for prohibitory and mandatory

injunction, submitted his counter claim, contending therein that

there is no gully of common use between the houses of both

parties. In fact, the gully in question is included in the purchased

portion of his house. Defendant- Gajraj Singh contended in his

written statement that his mother namely, Smt. Sushila Devi

purchased the plot through registered sale deed dated

02.09.1975, and since 1975, their construction is there.

Defendant categorically disputed and denied the existence of gully

(5 of 10) [CSA-311/2015]

and right of plaintiff to have his windows, ventilators etc. opening

towards this gully. The defendant made a counter claim to the

effect that plaintiff be restrained not to open any windows,

ventilators, nala, parnala and gate in the gully and may not

obstruct in raising construction by the defendant adjoining to the

plaintiff's southern wall.

12. The plaintiff submitted reply to the counter claim.

13. Learned trial court on the basis of rival pleadings of both

parties settled issues and allowed both parties to produce

evidence.

14. Learned trial court, on appreciation of documentary and oral

evidence adduced by both parties, observed that the plaintiff and

defendant have purchased their respective plots through

registered sale deeds and one Sh. Samundar Singh is the common

erstwhile owner of both properties. On appreciation of plaintiff's

sale deed (Exhibit 2), the site map (Exhibit 3) and on comparison

of the blue-print of site map (Exhibit 5) as well as the sale deed of

adjoining plots (Exhibit 8), the trial court came to the conclusion

that at site, the gully having 8 feet width, was left between

plaintiff and defendant's plot. On appreciation of oral evidence, the

trial court concluded that the defendant's house is constructed

after leaving the gully of 8 feet width towards the western side of

plaintiff's house. The trial court observed, on the basis of Exhibits

13A and 14A that defendant obtained sanction for construction of

their house on 05.08.1974 and 12.11.1974. Hence it was

concluded that prior to sale of the plot to plaintiff, the previous

owner has got sanction for construction of plot on the portion, sold

out to the defendant. The trial court observed that though the

existence of gully stands proved by the evidence, however, there

(6 of 10) [CSA-311/2015]

is no evidence to show that this gully is a common or public lane.

The trial court observed that plaintiff has not produced sufficient

evidence to show as to what nature of encroachment/construction

has been raised by the defendant on the northern side of the map

in question.

15. As far as, counter claim made by the defendant is concerned,

the trial court recorded fact finding that defendant has not

produced his documents of title to show that the area of gully in

question, is the part of his purchased plot. In absence of

defendant's evidence to show his exclusive ownership and right

over the area of gully, the counter claim of the defendant was

dismissed.

16. Finally, the learned trial court after thorough examination of

evidence of both parties and on evaluation of the measurement as

well as four boundaries, concluded that gully of 8 feet width exists

yet dismissed the plaintiff's suit for prohibitory and mandatory

injunction and simultaneously, dismissed the counter claim of

defendant vide judgment dated 21.01.2006.

17. On filling first appeals by both parties, as mentioned

hereinabove, the first appellate court heard and decided both

appeals together, however, passed two separate judgments dated

06.05.2015. Defendant's appeal against the dismissal of counter

claim has been dismissed. The plaintiff's appeal against the

dismissal of his suit for prohibitory and mandatory injunction has

been partly allowed and the decree for prohibitory injunction has

been passed in the following manner:-

"फलस्वरूप व्वदिद्वान अ अधन अधीनसधीनस्थ ्थ नसिद्वासलस दिद्वाय द्वारिद्वा पिद्वाारा पारय द्वारत वनरा स ्व वडिकक्री वी दिनिद्वािनांक 21.06.2006 अपिद्वासत वकसिद्वा जिद्वातिद्वा हह तधीनस्थिद्वा अपन अधीलिद्वाधीनस्थ्/्विद्वाी दिन अधी कक्री अपन अधील आवशिनांक रूप स स्वन अधीकिद्वाय द्वार कक्री जिद्वाकय द्वार

(7 of 10) [CSA-311/2015]

प्रवत्विद्वाी दिन अधीगर क को प्रवततिबिनांव अधत वकसिद्वा जिद्वातिद्वा हह वक य द्वारिद्वासतिद्वा ज को व्व्विद्वावी दित हह तधीनस्थिद्वा ्वता मिद्वान म उसकिद्वा ज को स्वरुप हह उसकक्री वसधीनस्थवत ी दि कोननों पक्ष सधीनस्थिद्वा्वत तिबनिद्वास य द्वारखग। शष अनशत कोष क सके समतिब्थ न अध म ्विद्वाी दिन अधी कक्री अपन अधील ख़िद्वाारा पारय द्वारज कक्री जिद्वातन अधी हह। वडिकक्री प परिद्वाा वनसमिद्वानशसिद्वाय द्वार तिबनिद्वासिद्वा जिद्वा्व । वनरा स प्रवत क सिद्वाधीनस्थ व्वदिद्वान व्व परिद्वाय द्वारर ्थ नसिद्वासलस कक्री पतिद्वा्वलन अधी प्रवषत ह को।"

18. Learned counsel for appellant-defendants submits that two

courts below have committed illegality in dismissing their counter

claim whereas the title documents were produced before the first

appellate court along with application filed under Order 41 Rule 27

CPC but the first appellate court dismissed their application and

declined to take additional documents on record. Hence, it has

been prayed that the prayer made in the counter claim deserves

to be decreed and both impugned judgments be set aside and

counter claim of defendant, too, be set aside.

19. Per contra, counsel for appellant-plaintiffs submits that both

courts concurrently held that the gully of 8 feet wide exists

between houses of both parties. In that situation, while passing

the decree for prohibitory injunction, the first appellate court

should have passed the decree for mandatory injunction as well,

directing the defendant to remove the encroachment/construction

made for the gully in question. Hence, the plaintiff's suit seeking

prayer for mandatory injunction also deserves to be decreed and

to this extent, the impugned judgment dated 06.05.2015 be

modified and plaintiff's suit for mandatory injunction also be

decreed.

20. On appreciation of the record, this Court finds that as far as

the appeal preferred by defendants is concerned, firstly, there is

no documentary evidence available on record to show their

(8 of 10) [CSA-311/2015]

ownership over the area of gully in question. Secondly, both courts

have concurrently found that there exists 8 feet wide gully

between houses of both parties. As per the site report of the

Commissioner, the use of the gully by the plaintiff, having its

windows, ventilators, gate, nala and parnala etc. have been

noticed. This gully is situated between houses of both parties and

obviously, the same has been left for common use by both parties

though not for the public at large as a public lane. The claim of

defendant to use the gully in question exclusively and seeking

prohibitory injunction against the plaintiff for opening his gate,

windows, ventilator, nalla & parnala in this gully as well as seeking

permission to raise construction adjoining to the plaintiff's western

wall, has rightly been declined by both courts. The finding of fact

recorded in relation to the existence of the gully by both courts is

based on due appreciation of the evidence of both parties.

Learned counsel for appellant-defendants could not point out any

perversity or jurisdictional error or that the fact findings are based

on misreading/non-reading of evidence or based on any

inadmissible peace of evidence. Therefore, on the basis of such

fact findings, no substantial question of law arises in the second

appeal preferred by the defendant.

21. As far as, the Civil Second Appeal preferred by the appellant-

plaintiff, is concerned, neither in the pleadings of plaint nor in

supportive documents, produced by plaintiff, the details of the

encroachment/construction alleged to be raised by the defendant

in northern side of the gully in question, is mentioned. Mere

reference in the plaint that by putting two pillars, a gate has been

affixed and the gully has been closed, have not been substantiated

by any evidence. In counter to that, it has come on record that

(9 of 10) [CSA-311/2015]

the construction of defendant is situated since 1975, it means

prior to purchase of the plot by plaintiff. The plaintiff purchased

the plot in question through sale deed dated 03.05.1979. There is

no specific evidence from the side of plaintiff as to when and what

type of construction was raised by the defendant in the gully in

question.

This Court during course of arguments, put a query from the

counsel for appellant-plaintiff to show about the nature of

encroachment/construction, however, no positive and satisfactory

response to that query has been given. The first appellate court

has observed in its judgment and decree dated 06.05.2015, while

decreeing the plaintiff's suit for prohibitory injunction and

declining the prayer for mandatory injunction to the effect that the

nature of construction in gully is not clear on record, therefore, a

decree for mandatory injunction cannot be passed in a mechanical

and routine manner. However, the first appellate court, while

concurring with the fact findings of the trial court that there exists

a gully between the houses of both parties, has passed decree for

prohibitory injunction in favour of plaintiff and against the

defendant.

22. This Court finds that as per the material available on record,

the first appellate court is well within its jurisdiction to pass the

decree for prohibitory injunction against the defendant and

declining the decree for mandatory injunction in favour of plaintiff.

The position of gully, having 8 feet width has been kept intact with

a right to use by both parties.

23. The substantial questions of law as proposed by appellant-

plaintiff are essentially questions of fact which requires re-

appreciation of evidence. None of the question of law, falls within

(10 of 10) [CSA-311/2015]

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 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] and State of Madhya Pradesh

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

Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and

ors. Reported in [(2020) 4 SCC 659]

24. In the present cases, on appreciation of findings of fact, which

suffer from no perversity, no question of law arises and in absence of

any substantial question of law, these second appeals are not liable to

be entertained and the same are hereby dismissed.

25. Any other pending application(s), if any, also stand(s) disposed of.

26. There is no order as to costs.

(SUDESH BANSAL),J

SACHIN /88-90

Powered by TCPDF (www.tcpdf.org)