Ramchander vs Shanker Through Lrs And Others
2022 Latest Caselaw 4258 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 209/2016

Ramchander S/o Chhotu, resident of Village Daulatpura, Teh.
Lalsot, Distt. Dausa, Raj.
                                                                    ----Appellant
                                    Versus
1.     Shanker S/o Ramdev (Since Deceased) Through
1/1.   Bhonri W/o Pyarelal D/o Shanker, Duttwas, Teh. Newai,
       Distt. Tonk, Raj.
1/2.   Manbhar W/o Ram Prasad D/o Shanker, Duttwas, Teh.
       Newai, Distt. Tonk, Raj.
1/3.   Vijay S/o Ram Prasad, Jhalana Dungri, Wai Ji Ki Kothi,
       Jaipur
1/4.   Ajay S/o Ram Prasad, Jhalana Dungri, Wai Ji Ki Kothi,
       Jaipur
1/5.   Rekha W/o Bhag Chand, Near Chokhi Dani, Tonk Road,
       Jaipur
1/6.   Kavita W/o Vinod, Near Chokhi Dani, Tonk Road, Jaipur
2.     Kistura S/o Hari, Village Daulatpura, Teh. Lalsot, Distt.
       Dausa, Raj.
3.     Kailash S/o Shanker, Village Daulatpura, Teh. Lalsot,
       Distt. Dausa, Raj.
4.     Surjan @ Sujya S/o Shanker, Village Daulatpura, Teh.
       Lalsot, Distt. Dausa, Raj.
5.     Madan S/o Shanker, Village Daulatpura, Teh. Lalsot, Distt.
       Dausa, Raj.
6.     Shrawan S/o Shanker, Village Daulatpura, Teh. Lalsot,
       Distt. Dausa, Raj.
                                                                 ----Respondents

For Appellant(s)          :     Mr. Manoj Bhardwaj
For Respondent(s)         :     Mr. P.C. Jain with
                                Mr. Zeeshan Khan



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                     Order


                                             (2 of 7)              [CSA-209/2016]

28/06/2022

1. Appellant-plaintiff has preferred this second appeal under

Section 100 of the Code of Civil Procedure, assailing judgment and

decree dated 02.03.2016 passed in Civil First Appeal No.19/2010

by the Additional District Judge, Lalsot, District Dausa whereby

first appeal has been allowed and the judgment and decree dated

03.12.2010 passed in Civil Suit No.43/1997 by the Civil Jude

(Junior Division) Lalsot, District Dausa has been quashed and

consequently the civil suit for permanent injunction filed by

appellant-plaintiff has been dismissed.

2. Heard counsel for both parties and perused the record.

3. The dispute between parties is in relation to an open piece of

land measuring 13X6 square yards situated at village Daulatpura,

Tehsil Lalsot, District Dausa. Appellant-plaintiff instituted a

simpliciter civil suit for permanent injunction on 13.11.1997,

claiming his absolute ownership and exclusive possession over the

suit plot on the basis of patta dated 03.02.1991 issued by the

Gram Panchayat, Daulatpura. It was prayed by plaintiff that

defendants be restrained not to interfere in his possession and not

to enter in possession of the suit plot nor to raise any construction

thereupon. The suit plot was shown in the site map appended with

the plaint with four boundaries. In order to establish his

possession, plaintiff's solely placed reliance upon the patta dated

03.02.1991 (Exhibit-1). Defendants submitted written statement

and denied the ownership and possession of plaintiff over the suit

plot rather alleged that the suit plot is in actual and physical

possession of defendants. It was contended that simpliciter suit

for permanent injunction without possession of plaintiff is not

(3 of 7) [CSA-209/2016]

maintainable and liable to be dismissed. Learned trial Court, as

per rival pleadings of parties framed issues and accord opportunity

to parties to adduce their respective evidence. Plaintiff exhibited

his patta Exhibit-1 and report of site Commissioner and produced

witnesses PW1 to PW3. Defendants did not adduce any evidence.

The trial Court, vide judgment dated 03.12.2010 decreed the

plaintiff's suit and restrained the defendants by way of permanent

injunction not to interfere in use and occupation of the suit plot by

plaintiff and further not to raise any permanent or temporary

construction over the suit plot.

4. Defendants, feeling aggrieved by judgment and decree dated

03.12.2010 preferred first appeal. During course of first

defendants moved application under Order 41 Rule 27 CPC to

place on record copy of two judgments dated 26.07.2011 and

08.11.2012, dismissing the application for disobedience of the

stay order filed by plaintiff. Appellate Court allowed the application

and both Judgments were taken on record vide order dated

14.10.2015 and were allowed to be exhibited.

5. The Appellate Court, re-appreciate plaintiff's pleadings and

evidence and observed that four boundaries of the suit plot as

mentioned in patta dated 03.02.1991 Exhibit-1 do not match with

the four boundaries of the suit plot shown in the site plan

produced by plaintiff as part of plaint. The Appellate Court, on

appreciation of evidence of PW1 and PW2 observed that plaintiff is

not in actual possession of the suit plot rather admits that one of

defendant- Shanker has entered into possession and kept his

Thadi on the suit plot. The Appellate Court also considered the

report of Court Commissioner (Exhibit-2) to observe that goods

(4 of 7) [CSA-209/2016]

and articles of defendants were found on the suit plot. It was

observed that plaintiff's has miserably failed to prove his actual

and exclusive possession over the suit plot. It was observed that

without possession of plaintiff, his suit for permanent injunction to

protect possession is not liable to succeed. The Appellate Court,

on placing reliance on the principle of law "No possession No

injunction", declined to grant any decree in permanent injunction

and consequently set aside the judgment and decree dated

03.12.2010 and dismissed the plaintiff's suit.

6. Counsel for appellant has vehemently argued that on the

basis of patta (Exhibit-1), plaintiff is absolute owner of the suit

plot and in relation to open piece of land possession follows title,

therefore, the Appellate Court committed illegality and

jurisdictional error in observing that plaintiff is not in possession of

the suit plot. On the other hand, counsel for respondent supported

the judgment of first Appellate Court and submitted that second

appeal do not involve any substantial question of law and deserves

to be dismissed.

7. Having heard counsel for both parties and on perusal of

record, this Court finds that plaintiff himself has pleaded in the

plaint that he resides at Delhi and on the site plot of plaintiff

Dhaakri was lying. Plaintiff in order to show genuineness, legality

of patta (Exhibit-1) has not produced any evidence to show that

patta was issued after following due process of law as prescribed

under the Rajasthan Panchayati Raj Act, 1953. Plaintiff's case as

pleaded in plaint that the suit plot is his ancestral property does

not find corroboration with the alleged patta. The four boundaries

of the suit plot as mentioned in the patta do not match with the

(5 of 7) [CSA-209/2016]

suit plot, shown by plaintiff in the site map appended with the

plaint. Plaintiff PW1 in his cross examination admits that articles

lying on the site plot do not belong to him but the defendant

Shankar has put such articles. PW2 admits in his statement that

defendant- Shankar has put his Thadi and is in possession of suit

plot. The report of Court Commissioner, supports the factual

aspect that the suit plot is in possession of defendants. Plaintiff,

during course of trial moved an application for disobedience of

temporary injunction order which was dismissed on merits vide

order dated 08.11.2012 with finding that defendant has not raise

any construction of thatched roof/thadi in violation to the stay

order. There is no reliable evidence of plaintiff to show that suit

plot remained in actual and exclusive possession of plaintiff. In

absence of plaintiff's possession, the prayer of plaintiff to grant

decree of permanent injunction in his favour to protect possession

cannot be passed. It is trite law that plaintiff has to prove his case

by adducing his own evidence and cannot take advantage of lack

of evidence or no evidence of defendant. The first Appellate Court,

on appreciation of evidence has recorded fact finding that plaintiff

is not in actual possession over the suit plot and hence, placing

reliance on the judgment of Supreme Court in case of Shri

Tninnnaiah Vs. Shabiras and ors. [2008 DNJ SC 133] has

dismissed plaintiff's suit for permanent injunction. The first

Appellate Court has assigned reasoning to upset and reverse the

findings of the trial Court. The first Appellate Court has acted well

within jurisdiction, while reversing the findings of the trial Court

and recording its own fact finding on the issue of possession.

Plaintiff's absolute ownership on the basis of alleged patta Exhibit-

(6 of 7) [CSA-209/2016]

1 has rightly been disbelieved. Otherwise also, patta Exhibit-1 do

not support plaintiff's case as pleaded in the plaint and cannot be

taken as an absolute document of title. More particularly when

same is neither registered document nor has been corroborated

with the supportive evidence of following the process of law and

do not match with the four boundaries as indicated in the site

plan.

8. Hon'ble the Supreme Court in case of Kondiba Dagadu

Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 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."

9. 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

SCC174], Jagannath Vs. Arulappa [(2005) 12 SCC 303],

Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar

[(1999)3 SCC 722], Arumugham Vs. Sundarambal [JT 1994

(4) SC464], Umerkhan Vs. Bismillabi [(2011) 9 SCC 684]

and Gurnam Singh Vs. Lehna Singh [(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

(7 of 7) [CSA-209/2016]

findings of fact by reversing the findings of the trial court if the

findings of the trial court are found to be perverse.

10. 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

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. There is no order as to costs.

11. Stay application as well as any other pending application(s),if

any, stand(s) disposed of.

12. Record of both Courts below be sent back forthwith.

(SUDESH BANSAL),J

NITIN /1

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