Bahadur Mal Through Lrs vs Kanchan Kanwar And Others
2022 Latest Caselaw 4915 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN

                           BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 136/2012
1.     Bhahadur Mal S/o Shri Rajmal, Kekri, Teh. Kekri, Distt. Ajmer
       Since Died Through Legal Hairs-

1/1.   Smt. Gheesi Bai W/o Late Bhahadur Mal Bordiya, Kekri, Teh.
       Kekri, Distt. Ajmer Raj.

1/2.   Paras Mal Bordiya S/o Late Bhahadur Mal Bordiya, Kekri, Teh.
       Kekri, Distt. Ajmer Raj.

1/3.   Ashok Kumar S/o Late Bhahadur Mal Bordiya, Kekri, Teh.
       Kekri, Distt. Ajmer Raj.

1/4.   Bhagchand S/o Late Bhahadur Mal Bordiya, Kekri, Teh. Kekri,
       Distt. Ajmer Raj.

1/5.   Vinod Kumar S/o Late Bhahadur Mal Bordiya, Kekri, Teh. Kekri,
       Distt. Ajmer Raj.

                                                                   ----Appellants

                                      Versus

1.     Smt. Kanchan Kanwar W/o Shri Bal Chand Since Died Through
       Her Legal Heirs-

1/1.   Bal Chand S/o Jaithal, Goyala, Presently Kekri

1/2.   Kamla Bai D/o Shri Bal Chand W/o Padam Singh, Devliya

1/3.   Sushila Bai D/o Shri Bal Chand W/o Dharmi Chand, Bhinay

1/4.   Lalita Devi D/o Shri Bal Chand W/o Mahaveer Prasad, Sokalya,
       Teh. Sarwad, Distt. Ajmer

1/5.   Nirmala Devi D/o Shri Bal Chand, Goyla, Teh. Sarwad, Distt.
       Ajmer

2.     Bal Chand S/o Jaithal,           Goyala, Presently Kekri, Teh. Kekri,
       Distt. Ajmer

3.     Padam Kumar S/o Shri Bal Chand, Village Goyala, Presently
       Kekri, Teh. Kekri, Distt. Ajmer

4.     Shri Kailash Chand S/o Ramanand, Sadar Bazar Kekri

                                                                  ----Respondents

For Appellant(s)           :     Mr. Vijay Choudhary
For Respondent(s)          :





                                          (2 of 7)              [CSA-136/2012]


           HON'BLE MR. JUSTICE SUDESH BANSAL

                               Judgment
19/07/2022

1. Appellants-plaintiffs have preferred this second appeal under

Section 100 of CPC against the judgment and decree dated

16.12.2011 passed in Civil Regular Appeal No.16/2003 by the

Court of Additional District Judge, Kekri, Ajmer, dismissing the

appeal and affirming the judgment and decree dated 12.11.2003

passed in Civil Suit No.387/1993 by the Court of Civil Judge

(Junior Division) and Judicial Magistrate, Kekri, Ajmer whereby

and whereunder the civil suit for mandatory and permanent

injunction instituted by appellants-plaintiffs, was dismissed on

merits.

2. Heard counsel for appellants and perused the impugned

judgments as well as material available on record.

3. It appears from record that appellant-plaintiff instituted a

civil suit way back on 17.10.1984, claiming a decree for

mandatory injunction for removal of projection, balcony etc.

constructed by defendants, overhanging towards the open space

situated in front of the plaintiff's shop. Apart from claiming

mandatory injunction, plaintiff also claimed that defendants be

restrained not to raise any construction on the open platform

situated in front of his shop. It may be noticed that after

institution of the plaint, an amendment was prayed to close the

further projection of 8X4 feet, alleged to be raised towards the

open platform after institution of the suit. After allowing the

amendment, the amended plaint was filed on 18.11.1995. As per

amended plaint, plaintiffs made following prayer:-

(3 of 7) [CSA-136/2012]

"अतः निवेदि है नि बहि वादी व् निलाफ प्रनतवादीगण ि० १, २ व् ३ िे नवरुद नििमि आशय िशय की नकी डिडिकशय की प्रदाि िशय की ान की जावे:- (अ)प्रनतवादीगण उििे र रिशतेदा रि व् उत रिानराधििार रियरियों िों को ो सकाई निषेदाेदाजा ज्ञा दा रिा पाबाबंद निया ान की जावे िशय की वे वादी िशय की पवूर्वी ओ रि नो सकत दथिाि ऐ, बी, सी, की डिी िशय की सामिे नो सकत िथले पलेट फ फॉमॉ ऐ, ब, इ, एफ िशय की ओ रि ान की जों को िक़शे मम िाली ो सयाही से दनशॉ त है िों कोई भीी प्रों कोान की जेकशि, िाली, छजान की जे अकवा तों कोनड़ियाा गकी डिॉ रि, बालििी इतयानद िहन लगाए तका द रिवाान की जे या निड़िनियााबं िहन रििे तका वादी िे उपयों कोग व् उपभीों कोग मम अकवा उसिे ज्ञा दा रिा िथले पलेट फ फॉमॉ प रि व् उसिशय की छत प रि निये ान की जािे वाली निसी भीी निमाॉ ण मम िों कोई बाराधिा िहन की डिाले ।

(ब)प्रनतवादी िों को ममकी डिट रिी इइनान की जाबंकशि ज्ञा दा रिा आदेश नदया ान की जावे िशय की नव वादी िशय की उप रिों कोक्त दनशॉ त पलेट फ फॉमॉ िशय की ओ रि अिनराधििअत रूप से व ान की जब रिदो सती बिाये गए लों कोहे िशय की गकी डिॉ रिरियों िों को व् बालििी िों को हटा ले व् निड़िनिया बाबंराधि ि रि देवे औ रि नज्ञा दतीय माबंनंझिल यानि सेिाबंकी डि फलों को रि मम द रिवाान की जा व् निड़िनियााबं ान की जों को िथले पलेट फ फॉमॉ िशय की ओ रि ंझिााबंिते बिाये है व् िथले पलेट फ फॉमॉ प रि आ रि सी सी िशय की छत बिा ि रि 5'.8'+ 3' िा प्रों कोान की जेकशि ि रि बिाई बालििी िों को प्रनतवादीगण ज्ञा दा रिा िहन हटवाए ान की जािे प रि माइनय इनयायलय ज्ञा दा रिा उइनही िशय की िी खरकी खर्चे से हटवाया ान की जाये व बाबंद ि रिवाया ान की जावे । (स) िी खराॉ अदालत वादी िों को प्रनतवादीगण से नदलवाया ान की जावे। (इ) अइनय िों कोई दीग रि दाद रिसी बहि वादी निलाफ प्रनतवादीगण िों को नदलाई ान की जावे।"

4. As per pleadings of plaint, plaintiff admits that he has sold

out his property to defendant No.1 Smt. Kanchan Kanwar through

sale deed dated 08.12.1983 and at that time it was agreed that

the defendant No.1 would not raise any construction of projection

or balcony at first floor towards the open platform, situated in

front of the plaintiff's shop. Subsequently, the defendant No.1 has

sold out this property to defendant No.4, who was impleaded as a

party and the amended plaint was filed accordingly. The plaintiff

has further pleaded that he sold out his remaining suit property to

defendant No.2 Bal Chand through another sale deed.

Fundamentally, the plaintiff's case claiming his right over the open

platform is based on an agreement, alleged to be entered into

(4 of 7) [CSA-136/2012]

between plaintiff and defendant No.1 at the time of sale deed

dated 08.12.1983.

5. In the written statements filed by defendants, the plaintiff's

claim/right over the open platform has been denied and it has

been categorically stated that plaintiff has no ownership over the

open platform, which is a property of Nagar Palika, Kekri. The

factum of having any agreement, as alleged by plaintiff, was also

denied.

6. The trial court, as per rival pleadings of parties and after

framing issues as well as after recording evidence of both parties,

observed that in the sale deed dated 08.12.1983, there is no such

agreement in favour of plaintiff as pleaded. The trial court

observed that the open platform belongs to the Nagar Palika, Kekri

and plaintiff does not have any ownership right over the open

platform. Thus, on the basis of appreciation of terms of sale deed

and having considered that plaintiff has no personal right over the

open platform to get the decree for mandatory and permanent

injunction against defendants, the suit was dismissed vide

judgment and decree dated 12.11.2003.

7. Appellants-plaintiffs preferred first appeal against the

judgment and decree dated 12.11.2003. The first appellate court

re-considered and re-heard the matter as a whole and on

appreciation of the terms of sale deed as well as of considering no

personal right of plaintiff over the open platform, concurred with

the fact findings of the trial court and dismissed the first appeal

vide judgment and decree dated 16.12.2011.

8. Hence against the concurrent findings, this second appeal

has been preferred. The second appeal was filed in the year 2012,

(5 of 7) [CSA-136/2012]

and since then the same has not been pursued for long 10 years

and still pending to be heard for admission.

9. Learned counsel for appellants has argued that in the map

appended with sale deed dated 08.12.1983, there is a note

regarding restriction against defendant No.1, for not raising any

construction of projection and balcony on the first floor of open

platform. He has argued that both courts have committed error of

law in not treating the condition, mentioned in the map appended

with the sale deed as a condition of the sale deed. Counsel for

appellants has proposed following substantial questions of law:-

"(i)Whether the conditions written on the site plan attached with the sale deed are integral part of the sale deed and are binding on the parties?

(ii)Whether the impugned judgments and decrees are sustainable in the eye of law in view of fact that findings on issue No.1, 2 and 2A are illegal and based on surmises and conjunctures?"

10. Having heard counsel for appellants and on perusal of

record, this Court has looked into the document of sale deed

dated 08.12.1983 and the note mentioned in the map appended

with the sale deed. The perusal of note goes to show that there is

condition that in case previous tin shedded structure is converted

into pacca varanda on the platform, the purchaser can construct a

window at the first floor towards the platform. There is no

stipulated condition in restrictive manner against the purchaser for

not raising any projection or balcony towards the open

platform/varandha at the first floor. Hence, the question of law

No.1 as proposed and suggested by counsel for appellants, does

(6 of 7) [CSA-136/2012]

not arise at all. The map appended with the sale deed, does not

support the case of plaintiffs, as pleaded.

11. As far as, the substantial question of law No.2 is concerned,

the same is essentially question of fact, which requires re-

appreciation of evidence as a whole. In relation to the findings of

issues No.1, 2 and 2A both courts on appreciation of evidence,

have recorded fact findings that the plaintiff has no ownership

right over the open platform and varandha as well as the same

belongs to Nagar Palika, Kekri. Counsel for appellants could not

point out any perversity, jurisdictional error or infirmity in the fact

findings and that the same are suffer from either mis-

reading/non-reading of evidence or passed on any inadmissible

peace of evidence.

12. 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

(7 of 7) [CSA-136/2012]

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.

13. After the discussion made hereinabove, since no substantial

question of law has been found involved in the present second

appeal, the same is not liable to be entertained and accordingly,

this second appeal is hereby dismissed.

14. All other pending application(s), if any, also stand(s)

disposed of.

15. There is no order as to costs.

16. Record of both courts below be sent back.

(SUDESH BANSAL),J

SACHIN /121

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