Rajasthan High Court
Bhomraj Thr Lrs vs Ratan Lal And Ors on 30 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.433/2016
Bhomraj S/o Shri Suwa Lal, resident of Chauth Ka Barwada,
Distt. Sawai Madhopur (deceased) through his legal heirs:-
1/1 Mooli Devi W/o Late Bhomraj,
1/2 Radheyshyam S/o Late Bhomraj,
1/3 Gyan Chand S/o Late Bhomraj,
1/4 Devendra S/o Late Bhomraj,
1/5 Padam Chand S/o Late Bhomraj,
1/6 Jambu Kumar S/o Late Bhomraj,
All R/o Chauth Ka Barwada, Distt. Sawai Madhopur Raj.
1/7 Shanti D/o Late Bhomraj W/o Shri Ramesh Chand, At
Present R/o Bhagwatgarh, Teh. Chauth Ka Barwada, Distt.
Sawai Madhopur Raj.
1/8 Prem Lata D/o Late Bhomraj W/o Shri Kunj Bihari
Agarwal, resident of Jaipur Raj.
....Plaintiffs/appellants
Versus
Ratan Lal S/o Shri Janbux, Bilata Jharkun Wala, resident of
Chauth Ka Barwada, Distt. Sawai Madhopur (deceased)
Through His Legal Heirs-
1/1 Kailash Jain S/o Late Ratan Lal (deceased)
1/1/1 Mukesh Chand S/o Kailash Chand, resident of
Chauth Ka Barwada, Distt. Sawai Madhopur Raj.
1/2 Ashok Jain S/o Late Ratan Lal Jain, R/o Chauth Ka
Barwada, Distt. Sawai Madhopur (Raj).
1/3 Tara Chand Jain S/o Late Ratan Lal Jain, resident of
Chauth Ka Barwada, Distt. Sawai Madhopur (Raj).
----Defendants/respondents
For Appellant(s) : Mr. Mahesh Gupta
For Respondent(s) :
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HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
30/06/2022
BY THE COURT:
This Appeal under Section 100 CPC has been filed by the appellants-
Plaintiffs (hereinafter `the plaintiffs') against judgment and decree dated 6-8-
2016 in First Appeal No.76/2009 (19/2004) passed by Additional District Judge
Sawai Madhopur while dismissing appeal confirmed the judgment and decree
dated 6-2-2004 in Civil Suit No.6/2001 passed by the Additional Civil Judge (S.D.)
Sawai Madhopur whereby and whereunder plaintiffs' suit for permanent
injunction has been dismissed.
2. The facts culled out from the record are that plaintiffs filed a suit claiming
that they owned and were in possession of a Nohra and shop in choth ka
Barwadad since the time of their ancestors, boundaries of which were mentioned
in plaint. A wall of nohra shown in map AC, was of the ownership of plaintiffs and
they were using the same. The plaintiff had not disputed that the said wall was
raw and though was constructed by defendant but vide written document 6-4-
1961 plaintiffs were allowed to use the wall 7.5 inch to put plaintiffs' tin-shed on
the wall. Plaintiffs' case is that on 14-11-1987 when plaintiffs tried to put their
tin-shed on the wall the defendant opposed and solely use by himself. Hence the
suit was filed claiming right by plaintiffs to use the wall 7.5 inch, as also to remove
the construction of defendant to that extent.
3. On service, the defendant opposed and filed written statement and
submitted that there is no right of plaintiffs on the wall AC, which was constructed
by defendant long back and being used by putting shelf and 3 ft. high wall was
also constructed. If there was any right of plaintiffs, the defendant could not be
allowed to put shelf on the wall in question. It was stated that the matter was also
considered by Panchayat and whole wall was found belonging to defendant vide
order dated 27-6-1987. Appeal thereagainst filed by plaintiffs was also dismissed
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vide order dated 28-10-1986, which order has not been put to challenge by
plaintiffs. According to allotment letter whole land belongs to defendant. The
defendant denied for any written note dated 6-4-1961. It was stated that the wall
AC was constructed by leaving 1.5 ft. land towards the side of plaintiffs and now
they want to use the wall of defendant. The defendant also prayed to restrain
plaintiffs from using the land left by him while constructed the wall.
The plaintiffs filed rejoinder and submitted that the defendant was not
entitled for leaving 3 ft strip and plaintiffs were entitled for 7.5 inch of the wall. It
was stated that defendant used the raw wall of plaintiffs.
4. Issues were struck and both parties adduced oral and documentary
evidence. The trial court also summoned special report by appointment of
Commissioner, who submitted his report on 6-4-2003. On appreciation of
evidence of both parties and with the help of the report of the Court
Commissioner, the trial court observed that wall is constructed beyond the
peripheries of plaintiffs' plot and within the boundaries of defendant's plot. It was
observed on the basis of site-inspection report that plaintiffs claimed their land to
be 71.5 ft in length, whereas as per Commissioner's report the same was found to
be 73 ft. Similarly on west side plaintiffs claimed the land to be 26 ¼ ft, while as
per Commissioner's report the same was found to be 29 ft. The trial court
recorded fact finding that plaintiffs have not proved execution of document dated
6-4-1961 and cannot claim any ownership right even to use the wall in question
7.5 inch, as the same is situated within the boundaries of defendant's plot. The
plaintiffs' case to use the wall in question 7.5 inch on the basis of document 6-4-
1961 was not proved. Counter claim put forth by defendant to claim ventilation
through the wall in question was also declined. Consequently the suit as well as
counter claim both were dismissed vide judgment dated 6-2-2004.
5. Aggrieved of the same the plaintiffs filed first appeal, which came to be
dismissed on 6-8-2016 on the ground that they failed to prove their case and that
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according to report of the commissioner plaintiffs were in possession of more land
than they claimed. Hence this second appeal.
6. Heard learned counsel for plaintiffs and perused the material available on
record.
7. Both courts below on appreciation of evidence on record have recorded a
fact finding that plaintiffs have failed to prove their right/ co-ownership over the
wall in question to use it at 7.5 inch and for removal of construction of defendant.
Both courts below found that the wall was constructed within four boundaries of
defendant's plot and beyond the plot of plaintiffs. Site inspection report verified
this factual aspect. Claim of plaintiffs based on document dated 6-4-1961 has
been disputed by defendant and has not been found proved. Fact findings recorded
by both the courts below are based on material available on record and well
within their jurisdiction. Findings recorded by both courts below are findings of
facts and do not give rise to formulation of any substantial question of law. The
substantial question of law as proposed by plaintiff are essentially questions of
facts, requiring re-appreciation of evidence, which is not permissible within the
scope of 100 CPC, unless and until there is illegality or perversity in finding. None
of the questions of law falls within the purview of substantial question of law.
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. 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. [(2020) 4 SCC 659]. Since no substantial questions of law are
involved in present second appeal, the same is not liable to be entertained.
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8. Accordingly, the second appeal is devoid of merits and the same is hereby
dismissed. There is no order as to costs.
9. Stay application and any other pending application(s), if any, also stand
disposed of.
(SUDESH BANSAL),J
Arn/4
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