Rajasthan High Court
Mumtaj Hussain vs Nagar Palika Kekari Thr ... on 13 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 603/2017
Mumtaj Hussain S/o Hazi Shamshuddin, R/o Kekari, Tehsil Kekri, Distt.
Ajmer
----Appellant
Versus
1. Nagar Palika, Kekari Through Chairman Sir, Nagar Palika
Kekari
2. Executive Officer, Nagar Palika Kekri
3. Sharwan Lal Rajoriya, R/o Kekri, Since Deceased Through Her
Legal Heirs
3/1. Nirmala D/o Shri Sharwan Lal Rajoriya, R/o Kekri Tehsil Kekri,
Distt. Ajmer
3/2. Ashok S/o Shri Sharwan Lal Rajoriya, R/o Kekri Tehsil Kekri,
Distt. Ajmer
3/3. Anil S/o Shri Sharwan Lal Rajoriya, R/o Kekri Tehsil Kekri,
Distt. Ajmer
3/4. Subhash S/o Shri Sharwan Lal Rajoriya, R/o Kekri Tehsil Kekri,
Distt. Ajmer
4. Nirmala D/o Shri Sharwan Lal Rajoriya, Legal Heirs Of Owner
Of Property Deceased Smt. Narangi Devi, R/o Kekri Tehsil
Kekri, Distt. Ajmer
5. Ashok S/o Shri Sharwan Lal Rajoriya, Legal Heirs Of Owner Of
Property Deceased Smt. Narangi Devi W/, R/o Kekri Tehsil
Kekri, Distt. Ajmer
6. Anil S/o Shri Sharwan Lal Rajoriya, Legal Heirs Of Owner Of
Property Deceased Smt. Narangi Devi W/o, R/o Kekri Tehsil
Kekri, Distt. Ajmer
7. Subhash S/o Shri Sharwan Lal Rajoriya, Legal Heirs Of Owner
Of Property Deceased Smt. Narangi Devi, R/o Kekri Tehsil
Kekri, Distt. Ajmer
----Respondents
For Appellant(s) : Mr. Sanjay Gangwar
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
13/07/2022
1. Appellant-plaintiff has preferred this second appeal under Section
100 of Civil Procedure Code, assailing the judgment and decree dated
03.06.2017 passed by Additional Sessions Judge Kekri, District Ajmer in
Civil Appeal No.03/2008, affirming the judgment and decree dated
(2 of 6) [CSA-603/2017]
28.02.2008 passed by Civil Judge (Junior Division) and Judicial
Magistrate First Class, Kekri, District Ajmer in Civil Suit No.81/92
(133/88) whereby in simpliciter suit for permanent injunction filed by
appellant-plaintiff, following decree has been passed:-
"अतः वादी का वाद ववरुद्ध प्रवतवादी दी सा. ३ आाशिक रूप दी सस
सीकार वकिया जाकर प्रवतवादी दी सा ३ कं ३ को जो जररियस ये साई वस्थाई निाई निषस निषेधािषेधाजा पाज्ञा पाबा निषेध
वकिया जाता है क वहै वाद वर्णित वववाददत स्थाई निगर पालिका क भूमि पर
वज्ञा पाबस्थाई निा स्थाई निगर पालिका क अस्थाई निुिवत कस वस्थाई निि्माण काियार्य स्थाई निहै नहीं करस। िसाई निष अस्थाई निुतं ३ कोाई निष
ज्ञा पाबाज्ञा पाबत दवा खाो जरर ज वकिया जाता है ।
वाद व्यिय पक्षकारास्थाई नि सिया वहैस्थाई नि करवहन करेंगस । वस्थाई निियिास्थाई निुदी सार पसार पर्मा दर पर्चा डिर्चा डिक ज्ञा पाबस्थाई निािया
जाए ।"
2. Heard counsel for appellant and perused the record.
3. Facts of case briefly stated are that appellant-plaintiff has
instituted a civil suit for permanent injunction on 15.04.1988 claiming
right of easement on the land opened towards southern side of his plot.
Plaintiff came out with a case that his plot has an opening towards the
eastern side and at the ground floor there is shop and at the first floor
there is a residential room. Plaintiff has further averred that towards
southern side, an open piece of land belonging to Nagar Palika, Kekri is
situated where one channel gate of his shop is opening and one window
of his residential house is opening. Plaintiff alleged that Nagar Palika is
inclined to sell this open piece of land to private respondent defendant
No.3 which is not permissible and easementary rights of plaintiff, having
air, light and entrance through the channel gate and window from
southern side would be adversely affected/ infringed. With such
averments, plaintiff has prayed a decree for permanent injunction
against the Nagar Palika, Kekri and private respondents defendants be
restrained from selling out the open land or to close his channel gate
and window having opening on the open piece of land. It is worthy to
note here that plaintiff has not sought any relief of declaration to
acquire easementary right either by way of necessity or by way of
(3 of 6) [CSA-603/2017]
prescription on the open piece of land of Nagar Palika, Kekri. Both
respondents defendants submitted their respective written statements
and denied plaintiff's right of easement as well as claim for permanent
injunction as prayed for.
The trial Court settled issued as per rival pleadings and recorded
evidence of both parties. The trial Court, vide judgment dated
28.02.2008 observed that factual position as depicted by plaintiff in his
plaint stands corroborated by the report of Court Commissioner which is
available on record. The trial Court observed that it is not in dispute
that open piece of land belongs to Nagar Palika, Kekri and neither
plaintiff nor private defendants have any ownership rights over the
same. If Nagar Palika, Kekri chooses to sell open piece of land treating
the same as strip of land to private respondents defendants, it has right
according to permissible rules, hence, no orders on this issue are
required to be passed by the Court. The trial Court declined to interfere
in the regular affairs of Nagar Palika, Kekri in respect of its right and
jurisdiction to sell out their piece of land. In relation to right of private
defendants to raise construction over the open piece of land and
thereby to close the gate and window of plaintiff is concerned, the trial
Court has already passed a decree in prohibitory form against
defendant No.3 vide its judgment dated 28.02.2008 as indicated above.
So far claim of easementary right of plaintiff is concerned, the trial
Court has observed that it is not in dispute that plaintiff has opening of
his property towards the eastern side and he has right of access to his
property from the main road from eastern side. It has been noticed that
channel gate opened by plaintiff in his shop at ground floor towards
southern side is an alternative gate. In such factual matrix the trial
Court has observed that for the property of plaintiff, he has his right of
access, easement or having a right of way, air and light from eastern
side. As such, the claim of easement from southern side through the
(4 of 6) [CSA-603/2017]
open piece of land of Nagar Palika, Kekri was declined. It may also be
noticed that during course of present suit at one point of time, Nagar
Palika, Kekri vide order dated 18.03.1989 sanctioned map of plaintiff's
property and approved the existence of opening of channel gate and
window towards southern side, however, in appeal, the Additional
District Collector vide its judgment and order dated 27.07.1994 has
quashed the permission. Thereafter, it has not come on record that any
fresh permission approving opening of channel gate and window of
plaintiff towards southern side was extended by Nagar Palika, Kekri.
With aforesaid findings, the trial Court decided plaintiff's suit vide
judgment dated 28.02.2008 passing decree for prohibitory injunction
against private respondents defendants.
4. Appellant-plaintiff preferred first appeal against the judgment
dated 28.02.2008, the first Appellate court re-considered and re-heard
the entire subject matter and on re-appreciation of evidence as a whole,
concurred with fact findings recorded by the trial Court and dismissed
the appeal vide its judgment dated 03.06.2017.
5. Counsel for appellant has argued that two Courts below have not
considered the right of easement acquired by appellant-plaintiff to have
his access, air and light through southern side through open piece of
land of Nagar Palika, Kekri.
6. Having heard counsel for appellant as well as perused the record
and facts of case, this Court finds that firstly the appellant-plaintiff has
not instituted any suit for declaration of easementary right to his
property from the land of Nagar Palika, Kekri situated towards southern
side of his plot. Secondly, it is not in dispute that plaintiff's property is
situated having right of access as well as right of air and light to his
property on the main road on eastern side. Thirdly, plaintiff's case for
easement acquired by way of necessity is not acceptable as the claim
for easement towards southern side is apparently alternative. It has
(5 of 6) [CSA-603/2017]
already been observed that plaintiff has his right of access, air and light
from eastern side undoubtedly. Fourthly, as far as right of easement by
way of prescription is concerned, plaintiff has not provided any details in
the plaint or in his evidence as to since when his channel gate and
window are situated towards the southern side on the open piece of
land of Nagar Palika, Kekri. Since 30-40 years their channel gate and
window are opening, is not suffice to claim easementary right by way of
prescription.
7. That apart, question of law as proposed/ suggested in the memo
of appeal are essentially questions of fact which required re-
appreciation of evidence as a whole. The re-appreciation of evidence as
a whole at the stage of second appeal is impermissible to draw a
different conclusion then by two Courts below. Counsel for appellant
could not point out any perversity or jurisdictional error in fact findings
recorded by Courts below nor the same suffer from any misreading/
non-reading of evidence. In absence of misreading/ non-reading of
evidence, interference with fact finding based on appreciation/re-
appreciation of evidence is not permissible within the scope of Section
100 CPC. This is a case of concurrent findings and this Court finds
that no substantial question of law in such backdrop of facts arise
in this second appeal and no interference is required to be made
in fact findings recorded by Courts below.
8. 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
(6 of 6) [CSA-603/2017]
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.
9. Accordingly, the second appeal is found to be devoid of
merits and the same is hereby dismissed. There is no order as to
costs.
10. Stay application and any other pending application(s), if any,
also stand disposed of.
(SUDESH BANSAL),J
NITIN /103
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