Ganga Ram And Others vs Kajod And Others
2022 Latest Caselaw 4317 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 247/2016

1.     Ganga Ram S/o Kesuram
2.     Chhitarmal S/o Kesu Ram
3.     Ram Kishore S/o Kesu Ram
       (All resident of Modapada, Ward No. 18 Chaksu, Distt.
       Jaipur)
                                                       ----Plaintiffs-appellants
                                   Versus
1.     Kajod S/o Luniram
2.     Prem Devi, W/o Kajod
3.     Jagdish S/o Kajod
4.     Rampati, W/o Jagdish
5.     Mangali Devi W/o Luni Ram
6.     Prahlad, S/o Bhonrilal,
       (All resident of Modapada, Ward No. 18 Chaksu, Distt.
       Jaipur)
                                                 ----Defendant-respondents

For Appellant(s)         :     Mr. Rajat Ranjan
For Respondent(s)        :


           HON'BLE MR. JUSTICE SUDESH BANSAL
                        Judgment

30/06/2022

1. Appellant-plaintiffs have preferred this second appeal under

Section 100 CPC against the judgment and decree dated

31.03.2016 passed by Additional District Judge No.2, Jaipur

District Jaipur in civil first appeal No.37/2014 affirming the

judgment and decree dated 27.05.2014 passed by Additional Civil

Judge (Sr.D.) No.2, Jaipur District Jaipur in Civil Suit No.31/2013

(188/08, 75/09) whereby and whereunder appellant-plaintiffs' civil

(2 of 6) [CSA-247/2016]

suit for permanent injunction, possession and seeking demolition

of construction of defendants has been dismissed on merits.

2. Heard counsel for appellants and perused the record.

3. It appears from the record that appellant-plaintiffs instituted

a civil suit in relation to the bada described in para No.2 of the

plaint and shown by mark क, ख, ग, घ in the site map appended

with the plaint. Plaintiffs brought a case that in that bada,

defendants entered into possession over the part of 16' X 3.6'

towards the eastern-southern side of the bada that part over

which defendants have been alleged to be encroached over the

plaintiffs' bada have been shown with yellow colour in the site

map. Plaintiffs' case, in the plaint itself is that Nagar Palika,

Chaksu has regularized the possession of defendants over an area

of 38' X 32' but defendants have raised construction in excess to

their regularized area by entering into 3.5' excess land towards

the plaintiffs' bada.

4. Respondent-defendants submitted written statement and

contended that they have raised construction within the

parameters of their regularized land comprising 38' X 32' which

has been regularized in their favour by the Nagar Palika, Chaksu.

Defendants did not dispute the possession of plaintiffs over the

bada however, has denied that defendants have not encroached

over any part or portion of the bada of plaintiffs.

5. In context to respective pleadings of both parties, learned

trial court framed issues. Both parties adduce their oral and

documentary evidence in support of respective issues.

6. That the trial court on appreciation of evidence of pleadings

and evidence observed that plaintiffs are in possession of bada but

have not shown any ownership and specification, measurement of

(3 of 6) [CSA-247/2016]

the bada as detailed out in the site map. The trial court observed

that plaintiffs have not produced sufficient evidence to show that

defendants have entered into possession by 3.5' towards the

plaintiffs' bada, in excess to the land area of 38' X 32' regularized

by the Nagar Palika, Chaksu in favour of defendants. It appears

from the record that on request of appellants, the trial court

appointed the Tehsildar to inspect the site and submit report. The

Tehsildar, in pursuance to the proof of the trial court inspected the

site and submitted site report dated 28.03.2013 on record. As per

site report of the Tehsildar, defendants' construction was not found

beyond the area of 38' X 32'. The oral evidence of parties were not

found in consonance with the documents, hence the trial court, on

appreciation of entire evidence on record, did not find the case of

plaintiffs as proved that defendants have entered into possession

over the plaintiffs' bada by covering a portion of 16' X 3.6' and

consequently, the suit was dismissed.

7. Appellant-plaintiffs preferred first appeal against the

judgment and decree dated 27.05.2014. The first appellate court

re-heard and re-considered the entire material on record. The first

appellate court, while deciding issue No.1 has observed that as

the issue of the ownership of plaintiffs over the bada is not

involved in the present suit, hence the same was not adjudicated.

The first appellate court while deciding issue No.2, observed that

the bada of plaintiffs and their neighbour namley, Jeevan Ram are

in the similar lines and as per the site report, it is not proved that

defendants have entered into the bada of plaintiffs to the extent of

3.5' after demolishing their boundary wall. The first appellate

court placed reliance on the report of Tehsildar as well as the

photographs and site map and has concurred with the fact findings

(4 of 6) [CSA-247/2016]

recorded by the trial court and dismissing the appeal vide

judgment dated 31.03.2016. Learned counsel for appellants would

argue that two courts below have committed perversity in placing

reliance upon the report of Tehsildar and not appreciating that the

report itself shows that defendants have raised construction in

excess to their regularized portion of 38' X 32' rather have entered

into the possession of plaintiffs' bada to the extent of 3.6' X 16'.

Learned counsel for appellants submits that the impugned

judgments and fact findings are perverse and appeal deserves to

be admitted and allow.

8. Heard learned counsel for appellants and on perusal of

record, this Court finds that plaintiffs have come out with a case

that an area of 38' X 32' was regularized in favour of defendants

but defendants have raised construction in excess to that

regularized portion and entered into the adjoining bada of the

plaintiffs to the extent of 16' X 3.6' as shown in the site map

(Exhibit-4) by yellow colour. Plaintiffs have not produced any

cogent evidence to prove the site map (Exhibit-4) in order to show

the measurement and specifications of the bada of plaintiffs and

the area alleged to be encroached upon by defendants. One report

(Exhibit-1) of the Nagar Palika, Chirawa was found not proved in

absence of supportive evidence. Plaintiffs themselves moved

application for appointment of Commissioner for site inspection

and on request of plaintiffs, the trial court appointed Tehsildar to

inspect and submit the site report. The report of Tehsildar was

produced pursuant to the order of the trial court and on request of

plaintiffs themselves. The courts below have not committed any

jurisdictional error in considering the site report even though the

Tehsildar was not produced any evidence. The argument of

(5 of 6) [CSA-247/2016]

counsel for appellants that the report of Tehsildar is not exhibited

and could not have been taken into consideration, is not

sustainable in the given facts and circumstances. Further the

plaintiffs have to prove their case by their own evidence. Both

courts below have observed that plaintiffs have not proved cogent

and convincing evidence to show the encroachment by defendants

over the portion of plaintiffs' bada. Both courts below have

recorded concurrent findings of fact in that regard and the same

are based on the material available on record.

9. 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-plaintiffs are essentially questions of

fact, which requires re-appreciation of evidence. Re-appreciation

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.

(6 of 6) [CSA-247/2016]

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 appeal thus, same is not liable to be

entertained.

10. Accordingly, the second appeal is found to be devoid of

merits and the same is hereby dismissed. There is no order as to

costs.

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

also stand disposed of.

12. Record of the two Courts below be sent back forthwith.

(SUDESH BANSAL),J

SAURABH/90

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