Rehman Khan S/O Sh. Sultan Khan vs Sitaram S/O Sh. Moti Lal
2022 Latest Caselaw 4233 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   S.B. Civil Second Appeal No. 152/2019

Rehman Khan S/o Sh. Sultan Khan, R/o Ramgarh Pachwara At
Present Tehsil Ramgarh Pachwara, District Dausa, Rajasthan.
                                                                                  ----Appellant
                                             Versus
Sitaram S/o Sh. Moti Lal, R/o Ramgarh Pachwara At Present
Tehsil Ramgarh Pachwara, District Dausa.
                                                                              ----Respondent

For Appellant(s) : Mr. Satish Chandra Mittal For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

27/06/2022

Appellant-defendant (hereafter referred to "defendant") has

filed this second appeal under Section 100 of C.P.C, assailing the

judgment and decree dated 30.11.2018 passed in civil first appeal

No.04/2018 by the Court of Additional District Judge, Lalsot

District Dausa affirming the judgment and decree dated

31.01.2018 passed in civil suit No.25/2013 by the Court of Civil

Judge, Lalsot, District Dausa whereby and whereunder civil suit for

permanent injunction filed by the respondent-plaintiff (hereafter

referred to "plaintiff") has been decreed in following manner:-

"अतः वादी सीताराम का वाद बावत स्ायी ननिषषधाजा नवरुद्ध प्रनतवादी इस आशय का निक्री नकया जाता ह नक वादपत्र कष सा् स सलथ सलंलंगनि निजरी निी नकशी नक्शों मक ए० बी० सी० िी० मक दनश् त खाम बाड़ष मक प्रनतवादी नकसी सी भी प्रकार का क का कबरा करनिष, निंव खोदनिष या ननिमा् ण करनिष सष स्ाई ननिषषधाजा सष प्रनतबथ सलंनधत रहष। ख। खरा् ममकदमा पक्षकारानि अपनिा अपनिा वहनि करक गष। ममतनबक ननिण् य निक्री पर। खरा ममरतीव हो। "

(2 of 5) [CSA-152/2019]

2. Heard learned counsel for the defendant and perused the

material available on record.

3. It appears that the dispute between parties is in relation to a

खाम बाड़ा situated at village Ramgarh, Tahsil Lalsot, District Dausa.

Plaintiff claimed to have purchased the same from one Shri

Ganesh Narain through registered sale deed dated 20.05.1974

and stated to be in possession thereof. In counter, defendant

placed reliance upon a patta dated 12.10.2010 issued by the

Gram Panchayat, Lalsot, Dausa. Since defendant intended to

interrupt the possession of plaintiff over the बाड़ा in question, the

plaintiff instituted the present civil suit for permanent injunction

on 21.03.2013.

4. The trial court, on the basis of rival pleadings of both parties,

settled issues and recorded evidence of both parties and made a

comparative examination/assessment of the evidence of both

parties and observed that four boundaries of the disputed बाड़ा do

not match with the patta issued in favour of the defendant. The

trial court observed that the plaintiff is in established and old

possession over the बाड़ा since date of purchase of the same

through sale deed dated dated 20.05.1974. The trial court

observed that the defendant has not challenged the sale deed of

plaintiff nor has claimed his ownership over the disputed बाड़ा on

the basis of his patta.

5. During the course of trial, the Court Commissioner was

appointed to inspect and submit the factual report. As per report

of Court Commissioner dated 01.04.2013, the plaintiff's tin shade

were found to be installed on the बाड़ा in question and plaintiff was

found in possession. The trial court, on appreciation of plaintiff's

evidence, including his sale deed and oral evidence of PW/1 and

(3 of 5) [CSA-152/2019]

PW/2 found that plaintiff's possession over the disputed बाड़ा is well

established. The evidence of DW/1 and DW/2 were also taken into

consideration. It was also observed by the trial court that the

plaintiff obtained permission to raise construction over the

disputed बाड़ा from the Gram Panchayat, Ramgarh, which was

granted on 25.07.1975. This order was remained intact in appeal

as well by the Additional District Collector, Dausa vide order dated

03.12.1985. Though, the trial court observed that Gatar Deep of

defendant is coming within four boundaries of disputed बाड़ा,

however the defendant was not found in possession. On overall

appreciation of the evidence on record, the trial court decreed the

plaintiff's suit in the manner as mentioned hereinabove vide

judgment dated 31.01.2018.

6. The defendant preferred first appeal, the first appellate court

re-appreciated the entire pleadings and evidence on record and

expressed its concurs with the fact finding recorded by the trial

court. The appellate court too observed that the defendant is not

in possession over the disputed बाड़ा rather the same is in

possession of the plaintiff. Thus, the first appeal was dismissed

vide judgment dated 31.11.2018.

7. Learned counsel for the appellant has vehemently argued

that the defendant has right over the property for which patta

dated 12.10.2010 has been issued by the Gram Panchayat, Lalsot

in his favour and both courts have committed jurisdictional error

in issuing a decree for permanent injunction against the

defendant.

8. On perusal of both judgments, it appears that there is no

finding by either of the court disbelieving the patta of defendant

rather both courts have observed that four boundaries mentioned

(4 of 5) [CSA-152/2019]

in the patta of defendant do not match with the four boundaries of

बाड़ा in question. The courts below have found that the patta of

defendant do not belong to the disputed बाड़ा as has been discussed

hereinabove and on the strength of possession of plaintiff, the

decree for permanent injunction has been passed against the

defendant. If any patta dated 12.10.2010 has been issued by the

Gram Panchayat Lalsot in favour defendant, it is open for the

defendant to get identify his land and to claim his right on the

basis of such patta. As far as the impugned decree is concerned,

the same do not suffer from any perversity or jurisdictional error.

Both courts, on appreciation of evidence on record, have passed

the decree, which is well within jurisdiction.

9. It is a trite law that while exercising the powers by High

Court under Section 100 CPC, re-appreciation of evidence for the

purpose of drawing a different conclusion other than recorded by

two courts of fact findings, is not permissible. The appellate court

found the first appeal to be devoid of merits. Consequently the

decree passed by the trial court was upheld by the appellate court.

Counsel for defendant has not been able to prove his case or to

point out any perversity or make out any substantial question of

law in respect of the judgment and decree passed by the trial

court as also the appellate court. The conclusion of the courts

below are based on findings of fact. The Hon'ble Supreme Court in

the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan

Gujar [(1999)3 SCC 722] and catena of other judgments

passed in case of C. Doddanarayana Reddy (Dead) by Legal

Representatives and Ors Vs. C. Jayarama Reddy (Dead) by

legal Representatives and Ors [(2020) 4 SCC 659],

(5 of 5) [CSA-152/2019]

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] has held that the concurrent findings of

facts even if erroneous cannot be disturbed by the High Court in

exercise of the powers under Section 100 CPC. This proposition is

well established. Findings of fact based on appreciation of

evidence are the province of the trial court and the first appellate

court.

10. In view of above, the second appeal is bereft of merits and

the same is dismissed.

11. No order as to cost.

12. Record be sent back forthwith.

13. Stay application and any other pending application(s), if any,

stand(s) disposed of.

(SUDESH BANSAL),J

TN/7

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