Rajasthan High Court
Jahoor Khan vs Salim And Ors on 27 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 539/2017
Jahoor Khan S/o Khairati Khan, R/o Khirni, Tehsil Malarna
Dungar, Police Station Bonli, District Sawaimadhopur.
----Appellant
Versus
1. Salim, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
2. Akhtar, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
3. Firoz, S/o Chothe Khan, R/o Khirni Tehsil Malarna Dungar,
District Sawaimadhopur.
4. Vaheed, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
5. Karamat, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
6. Rahamat, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
7. Farooq, S/o Chothe Khan, R/o Khirni Tehsil Malarna
Dungar, District Sawaimadhopur.
----Respondents
For Appellant(s) : Mr. Tarun Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
27/06/2022
1. Appellant-plaintiff has filed this second appeal under Section
100 of the Code of Civil Procedure, assailing judgment and decree
dated 26.05.2017 passed by Additional District Judge Sawai
Madhopur in appeal No.17/2012 (23/2012), affirming the
judgment and decree dated 13.03.2012 passed by Civil Judge
(Junior Division), Bonli in Civil Suit No.9/2010 whereby suit for
(2 of 4) [CSA-539/2017]
permanent injunction has been dismissed and counter claim of
respondents-defendants have partly decreed.
2. Having heard counsel for appellant and perused impugned
judgments available on record, it appears that plaintiff claimed
exclusive way to his lands of Khasra Nos.2575, 2576 and 4230
through the disputed way shown in the site map (Exhibit-1)
marked with B.E.F.G. In counter claim defendants denied the right
of way of plaintiff through the way in question rather alleged that
plaintiff wants to establish a new way, hence, defendants
submitted counter claim to injunct the plaintiff not to create any
way and open a door in disputed way. Both Courts, on
appreciation of pleadings and evidence have observed that plaintiff
has miserably failed to prove his exclusive right of way on the
basis of site map (Exhibit-1), neither plaintiff could produce any
Jamabandi nor claim any easementary right or prove to have his
access through the disputed way shown in Exhibit-1. On the
contrary, plaintiff himself admits that he has alternative 20 feet
wide way to have access to his property. Since plaintiff was found
to create a new way to open a door in way of defendants, counter
claim of defendants was decreed vide judgment dated
13.03.2012. Both parties preferred first appeals against judgment
and decree dated 13.03.2012, the first Appellate Court heard both
parties simultaneously and dismissed vide judgment dated
26.05.2017, affirming the decree passed by the trial Court.
3. Counsel for appellant during course of his arguments
miserably failed to show any right either on the basis of
documentary or on the basis of oral evidence to have access
through the way in question as shown in the site map (Exhibit-1).
(3 of 4) [CSA-539/2017]
4. Both Courts, on appreciation of evidence on record and
factual matrix as per the report of the Court Commissioner have
dismissed plaintiff's suit for permanent injunction and decreed the
counter claim of defendants. Plaintiff could not prove any right
over the way in question and plaintiff has rightly been injuncted to
close the door and not to have any access through the way in
question.
5. The findings recorded by two Courts below are findings of
fact and do not give rise to formulation of any substantial question
of law. In absence of involvement of any substantial question of
law, the second appeal cannot be entertained for exercising
jurisdiction under Section 100 CPC. The substantial questions of
law as proposed by appellant-plaintiff are essentially questions of
fact, which requires reappreciation of evidence. Reappreciation of
evidence is not permissible within the scope of Section 100 of
CPC, unless and until there is some illegality or perversity in
findings. None of the question of law, falls within 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, 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 409], Bholaram Vs.
Ameerchand, [(1981) 2 SCC 414], Ishwar Das Jain Vs.
(4 of 4) [CSA-539/2017]
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. [(2019) 4 SCC 659]. Since no substantial questions of law
are involved in present appeal thus, same is not liable to be
entertained.
6. Accordingly, the second appeal is found to be devoid of
merits and the same is hereby dismissed. There is no order as to
costs.
7. Stay application and any other pending application(s), if any,
also stand disposed of.
8. Record of the two Courts below be sent back forthwith.
(SUDESH BANSAL),J
NITIN /29
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