Rajasthan High Court
Tundaram S/O Kaderu vs Vijay Singh S/O Late Shri Ram Singh on 27 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 476/2018
Tundaram S/o Kaderu, R/o Village Pipla, Tehsil And District
Bharatpur (Rajasthan).
----Appellant
Versus
1. Vijay Singh S/o Late Shri Ram Singh, (Deceased) R/o
Village Pipla, Tehsil And District Bharatpur (Rajasthan)
1/1. Smt Premvati Widow Of Late Vijay Singh, R/o Village
Pipla, Tehsil And District Bharatpur (Rajasthan)
1/2. Deepak S/o Late Shri Vijay Singh, R/o Village Pipla, Tehsil
And District Bharatpur (Rajasthan)
2. Khanna S/o Late Ram Singh, R/o Village Pipla, Tehsil And
District Bharatpur (Rajasthan)
----Respondents
For Appellant(s) : Mr. Sidharth Jain for
Mr. Jainendra Kumar Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
27/06/2022
1. Appellant-plaintiff has filed this second appeal under Section
100 CPC feeling aggrieved against the judgment and decree dated
05.07.2018 passed in Civil Regular Appeal No.208/2016 by the
Additional District Judge No.3, Bharatpur, affirming the judgment
and decree dated 25.04.2015 passed in Civil Suit No.91/2014 by
the Additional Civil Judge No.2, Bharatpur whereby and
whereunder appellant-plaintiff's civil suit for permanent injunction
has been dismissed.
2. Heard learned counsel for appellant and perused the material
available on record.
(2 of 4) [CSA-476/2018]
3. It appears that appellant-plaintiff instituted a civil suit for
permanent injunction in relation to the suit property on the
strength of his possession.
4. The trial court passed the injunction order against
defendants to the effect for not opening any gate or access on the
suit property, but on first appeal, the first appellate court observed
that the suit property is a land of public chopal over which plaintiff
has no personal property rights. The case of plaintiff that the suit
property belongs to his ancestral property was not proved.
5. The first appellate court observed that the plaintiff in his
cross-examination, admitted that the suit property is a public land
of chopal. It was observed that merely at one point of time, the
plaintiff parked his tractor-trolly on public land, he cannot be said
to be in established possession over the public land. Defendants
DW.1, DW.2, DW.3 and DW.4 adduced evidence and proved that
the suit property is a public land of chopal and being used by
villagers.
6. The fact findings recorded by the first appellate court are
based on appreciation of evidence available on record and the first
appellate court has assigned cogent reasons to upset and reverse
findings of the trial court.
7. During course of argument, learned counsel for appellant
could not show that there is any document or other evidence to
prove his property rights over the suit property and the claim of
plaintiff that the suit property belongs to ancestral land is not
supported by any evidence.
8. In such situation, the fact findings recorded by the first
appellate court, do not suffer from any perversity or jurisdictional
error rather than the same are well within jurisdiction.
(3 of 4) [CSA-476/2018]
9. Hon'ble the Supreme Court in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has
held as under :-
"It is not within the domain of the High Court to
investigate the grounds on which the findings were
arrived at by the last Court of fact, being the first
appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses accepted
by the trial court in respect of credibility but even
where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in
second appeal when it is found that the appellate
court has given satisfactory reasons for doing so."
10. The Supreme Court in case of Santosh Hazari Vs.
Purushottamn Tiwari [(2001) 3 SCC 179], State Bank of
India Vs. Emmsons International Limited [(2011) 12 SCC
174], Jagannath Vs. Arulappa [(2005) 12 SCC 303],
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [(1999)
3 SCC 722], Arumugham Vs. Sundarambal [JT 1994 (4) SC
464], Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] and
Guranm Singh and Ors. Vs. Lehna Singh Reported in
[(2019) 7 SCC 641] has observed that the first appellate court is
well within its jurisdiction to re-appreciate the evidence as a whole
and to record its own findings of fact by reversing the findings of
the trial court if the findings of the trial court are found to be
perverse.
11. This Court finds that the first appellate court has acted well
within its jurisdiction and the reversal of findings are based on due
appreciation of evidence and assigning reasons. Such findings do
not suffer from any perversity. Learned counsel for appellant also
(4 of 4) [CSA-476/2018]
could not point out that the findings of first appellate court suffer
from any infirmity/illegality or misreading/non-reading of
evidence. In such circumstances, no substantial question of law
arises in this second appeal. Subsequently is sine qua non for
exercising the jurisdiction under Section 100 CPC and to entertain
the second appeal. Hence, the second appeal is found to be devoid
of merits and the same is dismissed.
12. All other pending application(s), if any, also stand(s)
disposed of.
13. There is no order as to cost.
(SUDESH BANSAL),J
SACHIN/6
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